























































COPYRIGHT DEPOSIT. 


















THE PASTOR 


ACCORDING TO THE 
NEW CODE OF CANON LAW 


By THE REV. P. CHAS. AUGUSTINE, O.S.B., D.D. 
Author of “A Commentary on the New Code of Canon Law,” etc. 



B. HERDER BOOK CO. 

17 South Broadway, St. Louis, Mo., 

AND 

68 Great Rubsell St., Loxdon, W. C. 

1923 



NIHIL OB ST AT 

Conception Abbey, Conception, Mo. 

March 27, 1923 

HK PHILIP PUS RUGGLE, O.S.B. 

Abbas 


NIHIL OB ST AT 

Sti. Ludovici, die 30. Aug. 1923. 

F. G. Holweck, 

Censor Librorum 


IMPRIMATUR 

Sti. Ludovici, die 31. Aug. 1923. 

*i*Joannes J. Glennon, 
Archiepiscopus 

Sti. Ludovici 



Copyright, 1923, 
by 

B. Herder Book Co. 


All rights reserved 
Printed in U. S. A. 



©C 1 A 7 G 0987 

'Vvo I 


TO THE RIGHT REVEREND 

FRANCIS GILFILLAN, D.D. 

BISHOP OF ST. JOSEPH, MO., 

WHOSE PASTORAL AND SCHOLARLY ACHIEVEMENTS 
His Holiness Pope Pius XI 
HAS WORTHILY CROWNED 
BY HIS ELEVATION TO THE EPISCOPAL DIGNITY 
THIS VOLUME IS RESPECTFULLY DEDICATED 
AS A TOKEN OF “ORA ET LABORA” 

AND A CORDIAL AUGURY AD MULTOS ANNOS 
BY THE AUTHOR 



FOREWORD 


The main subject of this book is the pastor, who plays 
a very conspicuous part in the Code. But as the pastoral 
office and functions are treated in nearly every one of the 
five books, the author soon perceived that, in order to 
offer a coherent and intelligent essay, it was necessary at 
least to outline the whole of the Code. This he endeav¬ 
ored to do by making, as it were, a summary of the Code 
with special reference to his main theme. The difficulty, 
of course, consisted in selecting all the really salient points. 
We cannot possibly hope to satisfy every one’s expecta¬ 
tion or taste—for tastes differ. But, what little ex¬ 
perience we had gathered from practical mission work 
and friendly communications, has been embodied in this 
volume, which is intended for busy pastors and curates. 
This practical purpose may also account for the sparing 
use of critical apparatus. If we have sometimes, for the 
sake of brevity, referred to our Commentary, we may 
be pardoned. A Summary will ever resemble “condensed 
milk,” and is generally meant to whet the appetite for 
“more.” We would beg competent and conscientious 
critics and kind readers to keep in view the twofold end 
of this work, and to accept the assurance that we have 
written with the aim of being helpful to our well-meaning 
and hard-working clergy: 

Ut in omnibus glorificetur Deus. 

Conception Abbey, Conception, Mo. 



CONTENTS 


PAGE 

BOOK X. GENERAL RULES.i 

Extent and Import of the Code.i 

Title I. Ecclesiastical Laws .2 

Title II. Customs .3 

Title III. Reckoning Time.4 

Title IV. Rescripts .6 

Title V. Privileges.8 

Title VI. Dispensations.10 

BOOK II. ECCLESIASTICAL PERSONS.12 

Precedence.13 

Part I. The Clergy.15 

Title I. Incardination in a Diocese.15 

Title II. Rights and Privileges of the Clergy . . 18 

Title III. Obligations of the Clergy.19 

Title IV. Ecclesiastical Offices.21 

Title V. Ordinary and Delegated Power .... 24 

Title VI. Return of Clergymen to the Lay State 25 

Title VII. The Supreme Power and Those Who 
Partake Thereof by Ecclesiastical Law ... 28 

Title VIII. The Episcopal Power and Those Who 

Partake Thereof.31 

The Diocesan Court.32 

Pastors .35 

Definition.35 

The Qualification of Pastors . 36 

The Appointment of Pastors.37 

Examination and Concursus.37 

Rights of Pastors.39 

Duties of Pastors.41 

Assistant Priests and Rectors.43 

Part II. Religious .48 

The Religious State.48 

Exemption.49 

Part III. The Laity.52 

BOOK III. ADMINISTRATIVE LAW. 54 

Part I. The Sacraments ......... 54 

Title I. Baptism . 55 

1. Nature of Baptism. 55 

vii 






























• • 


CONTENTS 


PAGE 

2. The Minister .56 

3. The Subject.58 

4. Rites and Ceremonies.62 

5. Sponsors.65 

6. Time and Place.68 

Title II. Confirmation.72 

Title III. The Holy Eucharist.73 

Chapter I. The Holy Sacrifice of the Mass . 73 

Rites and Ceremonies of the Mass.76 

Time and Place for Celebrating Mass .... 77 

Mass Stipends.80 

Chapter II. The Holy Eucharist as a Sacra¬ 
ment .91 

The Minister.91 

Time and Place for Distributing Holy Communion 96 
Title IV. The Sacrament of Penance .... 97 

Indulgences.103 

Title V. Extreme Unction .in 

Title VI. Holy Orders.113 

Title VII. Matrimony .118 

1. Essence, Object, and Species.119 

2. Betrothal.121 

3. Preliminaries and Banns.122 

4. Impediments in General.127 

5. Dispensations from Impediments.129 

6. Rules for Dispensation.133 

7. Prohibitive Impediments.136 

8. Diriment Impediments. ... 140 

9. The Matrimonial Consent.146 

10. Form of Celebrating Marriage.150 

Valid Assistance.151 

11. Effects of Marriage.161 

12. Dissolution of the Matrimonial Bond .... 162 

13. Separation.165 

14. Revalidation of Marriage.166 

Title VIII. The Sacramentals.169 

Part II. Sacred Places and Times.171 

Title IX. Churches .171 

Title X. Oratories.175 

Title XI. Altars.170 

Title XII. Ecclesiastical Burial.178 

Title XIII. Holydays.183 

Title XIV. Abstinence and Fasting.184 

Part III. Divine Worship.185 

Title XV. Reservation and Worship of the 

Blessed Sacrament.187 

Title XVI. Worship of Saints, Images, and Relics 188 

Title XVII. Processions.190 

Title XVIII. Sacra Supellex .191 

Title XIX. Vows and Oaths.192 






































CONTENTS ix 

paqb 

1. Vows.192 

2. Oaths.194 

Part IV. The Teaching Office of the Church . . 195 

Title XX. Preaching the Word of God .... 196 

Title XXI. Seminaries .198 

Title XXII. Schools.199 

Title XXIII. The Censorship and Prohibition of 

Books.201 

Title XXIV. Profession of Faith.205 

Part V. Benefices and Other Non-Corporate Ec¬ 
clesiastical Institutes.206 

Part VI. The Temporal Possessions of the Church 209 

Title XXVII. Acquisition of Ecclesiastical Prop¬ 
erty .210 

Title XXVIII. Administration of Church Prop¬ 
erty .219 

Title XXIX. Contracts.221 

Title XXX. Pious Foundations.224 

BOOK IV. ECCLESIASTICAL TRIALS.225 

Part I. Ecclesiastical Procedure.225 

Section I. Trials in General.226 

I. The Forum Competens or Competent Court . . 226 

II. The Judge.227 

III. Assessors or Assistants.229 

IV. The Parties.230 

V. Procedure.232 

A. Opening of the Case.233 

Proofs ..235 

B. Defence or Pleading ..238 

C. The Sentence and its Execution.240 

Section II. Special Rules for Certain Trials . . 244 

I. Criminal Cases.244 

II. Matrimonial Cases.246 

III. Ordination Cases.251 

Part II. Beatification and Canonization .... 252 

Part III. Mode of Procedure in Certain Cases . . . 254 

General Rules.254 

A. Removal of Irremovable Pastors.254 

B. Removal of Movable Pastors.256 

C. Transfer. 2 57 

D. Procedure against Clergymen Transgressing the 

Law of Residence . 257 

E. Procedure against Concubinarians.258 

F. Procedure against Neglectful Pastors .... 259 


G. Suspension ex Informata Conscientia . 259 





























X 


CONTENTS 


PAGE 

BOOK V. PENAL CODE.262 


Part I. Crimes.262 

Title I. Nature and Division of Crimes .... 262 

Title IL Imputability .263 

Title III. Conatus Delicti .265 


Part II. Penalties . 266 

Title IV. Definition, Kinds, Interpretation, and 

Application. 267 

Title V. Superiors with Coercive Power . . . 269 

Title VI. Who are Subject to Penal Laws . . . 271 

Title VII. Remission of Penalties. 272 

Title VIII. Censures. 274 

Particular Censures. .... 281 

I. Excommunication .282 

II. The Interdict.284 

III. Suspension.285 

Title IX. Vindictive Penalties. 287 

Title X. Penal Remedies and Penances .... 290 


Part III. Penalties for Individual Crimes . . . 291 

I. Excommunications Reserved to the Holy See 


Modo Specialissimo .291 

II. Excommunications Reserved to the Holy See 

Modo Speciali .292 

III. Excommunications Reserved to the Holy See 

Simpliciter .294 

IV. Excommunications Reserved to the Ordinary 296 

V. Excommunications Reserved to No One (Ne~ 

mini) .297 

VI. Interdicts . 298 

VII. Suspensions. 299 

VIII. Degradation. 300 

IX. Deposition. 301 

X. Infamia Iuris .302 

XI. Privation of Office or Benefice. 302 


Appendix 

Index 


305 

317 

























INTRODUCTION 


The five books of the New Code of Canon Law re¬ 
mind the student of the time-honored number of the 
Decretals of Gregory IX, Boniface VIII, and Clement V. 
A thorough “stickler” insisted upon the verse: Index, 
indicium, clems, connubia, crimen, which indicated the 
matter treated in the authentic collections of the three 
medieval Popes. Outside of these three there was no 
authentic collection, not even the “divine work” of Mas¬ 
ter Gratian, the Decretum Magistri Gratiani, which was 
considered as a purely private compilation. In fact, up to 
the time of the promulgation of the Code there was in 
vogue no authentic collection besides the three mentioned, 
although the material had increased enormously. It was, 
therefore, a gigantic undertaking on the part of Pius X 
and his untiring Secretary of State, Cardinal Gasparri, to 
collect the scattered material into a well-digested volume. 
The work was started in 1904 and completed in 1916. 
The saintly Pius was not privileged to see its completion. 
Benedict XV promulgated the Code on Pentecost day, 
May 27th, 1917, and it went into force on May 19th, 1918. 

Although the ancient division into five books has been 
retained, yet the real division points towards that of the 
Institutes of Gaius: <c Personae, res, actiones”; or that 
of Lancelotti’s Institutions: <e Personae, res, indices, 
criminal The five books are, therefore, divided as fol¬ 
lows : 

xi 


INTRODUCTION 


• • 

Xll 

Book I. General Rules (canons 1-86); 

Book II. Ecclesiastical Persons (canons 87-725) 1 

Book III. Ecclesiastical Things, or Administrative 
Law (canons 726-1551); 

Book IV. Ecclesiastical Trials (canons 1552-2194) i 

Book V. Penal Code (canons 2195-2414). 

Quotations from the Old Sources. Every student of 
Canon Law is supposed to be familiar with the manner of 
quoting the ancient sources, which may therefore find 
a place here. 

1. Decretum Gratiani: Part I: c. I, Dist. 101, i.e., 
canon 1, Distinction 101. 1 —Part II: c. 2, C. 17, q. 4, i.e., 
canon 2, Causa 17, quaestio 4.—Part III: c. 16, Dist. 5 
de consecr(tione), i.e., canon 16, Distinction 5.—Causa 
33, quaestio III treats De poenitentia and is quoted: c. 1, 
Dist. 7 de Poenit. 

2. The Decretals of Gregory IX, published in 1234, 
are divided into five books, each book into titles, and each 
title into chapters; it is quoted thus: c. 2, IX, III, 10, 
which means: chapter 2, Deere tales Gregorii IX, book 3, 
title 10. 

3. The Decretals of Boniface VIII, published in 1298, 
are divided the same way as the preceding, but are known 
as Sextus; quote: c. 2, 6°, I, 3, that is: chapter 2, in 
Sexto, book 1, title 3. 

4. The Clementinae, published in 1317, are divided the 
same way, with the sigla Clem., thus: c. 4, Clem. V, 3, 
which means: chapter 4, Clementinae, book 5, title 3. 

5. The Extravagantes Ioannis XXII consist of 14 titles 
and 20 chapters and are quoted thus: c. 2, Extr. Ioannis 
XXII, tit. I ( suscepti reginvinis). 

6. The Extravagantes Communes are divided like the 
Decretals, though the 4th is “vacant,” and are quoted as 
follows: c. un., Extr. Comm., Ill, 4 (Ambitiosae) , which 


INTRODUCTION 


xm 


means: capite unico, Extravagantes Communes, book 3, 
title 4.—The words put within brackets, like Ambitiosae, 
form the beginning of the papal Constitution which con¬ 
stitutes the source of the respective text. 




THE PASTOR 


BOOK I 

GENERAL RULES 

EXTENT AND IMPORT OF THE CODE 

(Can. i-6 ) 

The Code is the law for the universal Latin Church, 
but leaves the Oriental Church unaffected, except where 
it expressly mentions the latter. However, as formerly, 
so now, the Oriental Church is concerned in matters per¬ 
taining to faith and morals, for instance, the reading of 
forbidden books, and in matters connected with the divine 
or natural law, as, for instance, the application of the 
Mass for the people at least sometimes during the year. 

Liturgical laws, unless expressly corrected in the Code, 
retain their force. Hence the Pontihcale * Romanum, the 
Caeremoniale Episcoporum, the Rituale Romanum, and 
the Missale Romanum are still to be followed, the latter 
according to the latest edition. 

Concordats, privileges, and indults hitherto granted by 
the Apostolic See, either to individuals or to organiza¬ 
tions, remain intact if they are still in use and have not 
been revoked, provided, of course, they are not expressly 
repealed by the Code. 

Customs expressly reprobated by the Code are not al- 

l 


2 


GENERAL RULES 


lowed to revive; other centennial and immemorable cus¬ 
toms may be tolerated by the local Ordinaries if they 
deem it impossible to eradicate them. 

Concerning the relation of the new to the old law, the 
Code, indeed, expressly states that, for the most part, it 
retains the discipline hitherto in force; but it also abro¬ 
gates all laws, universal as well as particular, running 
counter to its own provisions. As to penal laws it 
should be noted that none of the old penal laws remain 
in force. The Code is exclusive lazv in all matters of 
discipline, and most emphatically in all penal matters. 

TITLE I 

ECCLESIASTICAL LAWS 

(Can. 7-24) 

Laws are enacted the moment they are promulgated. 
Papal laws are supposed to be promulgated by their be¬ 
ing published in the Acta Apostolicae Sedis; and, as a 
rule, become obligatory three months after the date af¬ 
fixed to the number of the Acta in which they appear. 

Laws are not personal but territorial, and do not af¬ 
fect the past, but the future. Consequently the Code, as 
such, is not retroactive. 1 

General laws bind all for whom they are given, i. e., 
those who are baptized and have a sufficient use of rea¬ 
son. The age limit is the seventh year, completed. Par¬ 
ticular laws bind only those who have a domicile or quasi- 

1 Thus marriages invalidly contracted before May 19, 1918, 
on account of a diriment impediment, now abolished by the Code 
(fourth degree of blood relationship, for instance), are not re¬ 
validated by the Code, but need a dispensation or sanatio. (Pont. 
Com., 2-3 June, 1918 ( A. Ap. S ., Vol. X, p. 346.) 


ECCLESIASTICAL LAWS 


3 


domicile in a territory, and actually reside therein. Perc- 
grini are bound to observe particular laws if these bind 
also in their own territory, or if they concern public wel¬ 
fare or legal formalities. 

Ignorance of nullifying or disqualifying laws does not 
excuse from their observance. But laws of this kind 
must be expressly declared such; for instance, irregulari¬ 
ties (can. 988) and impediments. 

An authentic interpretation of a law can be given only 
by the legislator himself, or his successor, or those to 
whom the power of interpretation has been given by 
either. Benedict XV has instituted a Pontifical Com¬ 
mission for the Authentic Interpretation of the Code of 
Canon Law, which enjoys the exclusive right to interpret 
the canons. 2 All penal laws and such as restrict human 
freedom require a strict interpretation. 

Canon 24 is important for every priest. It says that 
precepts given to individuals oblige those for whom they 
are given, everywhere, but cannot be juridically enforced, 
and cease to bind when the lawgiver loses his authority, 
unless they were imposed by a legal document or in the 
presence of two witnesses. This canon (24), we say. is 
important, because it curbs arbitrary proceedings against 
priests. 

TITLE II 

CUSTOMS 

(Can. 25-30) 

An ecclesiastical custom derives legal force solely from 
the (at least tacit) consent of the lawgiver. Certain req¬ 
uisites, however, must combine in order to render a 

2 <t C j um iuris canonici,” Sept. 15, 1917 (A. Ap. S., IX, 483 f.) 


4 


GENERAL RULES 


custom reasonable and therefore lawful. Unreasonable 
customs are such as are expressly reprobated by the Code 
or contrary to divine law. Besides, prescription, or a 
certain lapse of time, is required to establish a custom 
so that it will amount to a law or right. Forty continu¬ 
ous years are necessary for a custom beyond the. law, 
whilst ioo years are required to induce a custom 
against a law that is sanctioned by a clause forbidding 
contrary customs. 

Finally, since a custom takes the place of a law, and a 
law, as a rule, is imposed only on autonomous societies 
or corporations, it follows that only a community which 
is capable of having an ecclesiastical law imposed on it can 
introduce a custom in the proper sense. Hence single 
parishes are not in a condition to introduce a custom; 
they may have observances, but not customs proper. A 
feast or fast that was observed in a parish from time im¬ 
memorial does not bind by virtue of that observance. 
But if such a feast or fast has been kept in a diocese, it 
obliges, since a diocese is capable of having a law im¬ 
posed upon it. Against the Code only such customs 
may be tolerated as are mentioned above (see can. 5). 

TITLE III 

RECKONING TIME 

(Can. 31-35) 

A day consists of twenty-four hours, running continu¬ 
ously from midnight to midnight. A week consists of 
seven days; a month of thirty days, and a year of 365 
days. In reckoning the hours of the day, the local us¬ 
age must be followed; but in the private celebration of 
Mass, in the private recitation of the Breviary, in receiv- 


RECKONING TIME 


5 


ing Holy Communion, and in the observance of fast 
and abstinence, though the usual local computation of 
time differs, one may follow either the local time, whether 
true or mean, or the legal time, be this regional or 
extraordinary. These terms call for a brief explanation. 

Time is here taken as solar, not as sidereal, time, which 
latter is produced by a complete rotation of the earth on 
its axis. The length of a solar day is estimated from the 
departure of the sun from a given meridian to its next 
return to the same. This is called true or real solar 
time ( tempas verum). Mean time ( tempus medium) is 
reckoned by the mean sun, an imaginary sun having uni¬ 
form motion, which in the general average and in the 
long run keeps as much in advance of the true sun as 
behind it; and, therefore, on a basis of perfect equality 
in the duration of days. 

Legal time, called thus because established by law or 
convention, is divided into regional and extraordinary. 
The regional time or hour was introduced for reasons 
of convenience, by assuming one main meridian of a 
country or province and applying it to all places within 
the same. In the United States there are five different 
regional times, 15 degrees of longitude corresponding 
exactly to one hour of time. 

Extraordinary time, finally, is that famous or ill-famed 
wartime, of which a farmer said: “They may move the 
clock as much as they please, but the cows don’t give milk 
until it’s time.” 

The Code says: If the starting point ( terminus a 
quo) coincides with the beginning of day, the first day 
is included in the reckoning and the time or term ex¬ 
pires with the beginning of the last day of the same num¬ 
ber. Thus, can. 465 allows pastors a two months’ vaca¬ 
tion. Now, if the beginning of the day ( initium diei) is 


6 


GENERAL RULES 


to be taken mathematically, as appears to be the intention 
of the legislator, 3 and a pastor begins his vacation on Aug. 
15th, at twelve o’clock midnight, i. e., after the clock has 
struck 12 on Aug. 14th, he must be back at midnight of 
Oct. 14/15. Or the pastor might have to assist at the 
profession of a religious. He should, in that case, in¬ 
quire when the novitiate began. If the religious started 
his novitiate on Sept. 8th, at midnight, i. e., immediately 
after the last stroke of 12, Sept. 7th, he may make pro¬ 
fession on Sept. 8th, the Nativity of the B. V. M. If, 
on the other hand, the vacation was started on Aug. 15th, 
after midnight, the first day is not counted and the term 
expires when the last day of the same figure is com¬ 
pleted, i.e., the pastor may return Oct. 15th, and the 
profession, in the case stated above, must take place Sept. 
9th, if the novitiate was begun after midnight of Sept. 
8th, i. e., a minute after the clock struck twelve. For¬ 
merly all legal business commenced at day-break. 

Tempus utile is the term granted for the exercise or 
prosecution of certain rights, so that in case one should 
ignore it, or be unable to take advantage of it, the lapse 
of time would not damage or prevent him. Tempus con¬ 
tinuum runs without interruption. 

TITLE IV 

RESCRIPTS 

(Can. 36-62) 

Rescripts are written answers, given by legitimate su¬ 
periors, either with or without the medium of an executor, 
to questions proposed or favors asked for. 

The Apostolic See as well as Ordinaries may grant re- 

3 See Lacou, De Tempore, 1921, p. 35, p. 41 f. 


RESCRIPTS 


7 


scripts to all who are not expressly forbidden to ask for 
them. If an executor is mentioned in the rescript, he 
has the right and duty to investigate the matter and the 
persons who demanded the rescript, and to ascertain the 
reason for it. For in all rescripts, even when not ex¬ 
pressly stated, the condition “si preces veritate nitantur ” 
is understood. Essential conditions are usually expressed 
by the particles si or dummodo, or others of the same 
kind. If the full truth is not stated in the petition, there 
is a subreptio. This does not impair the validity of the 
rescript, provided the stylus curiae was observed. The 
stylus curiae is nothing else but the form or method pre¬ 
scribed for each Congregation, Tribunal or Office of the 
Roman Court. If a falsehood has been alleged, there is 
an obreptio. An obreptio does not render a rescript in¬ 
valid, if the sole reason, or at least one of several 
reasons alleged is true. 

A rescript issued with the clause motu proprio is valid, 
even if subreptitious, unless the decisive reason, if there 
be only one, is false. 

Errors affecting the name of the person to whom or by 
whom a rescript is issued, or the place where the bene¬ 
ficiary dwells, or the favor itself, do not render a 
rescript invalid if the Ordinary is persuaded that no 
doubt exists as to the identity of the person or the thing 
asked for. 

A rescript which requires no executor is valid from 
the date of its issuance (a die datae ) ; a rescript which 
demands an executor, from the date of its presentation to 
the grantee (a die praesentatae ). 

Rescripts must be interpreted according to the proper 
meaning of the words and common parlance, nor are 
they to be extended to cases not mentioned therein. 

The executor acts invalidly if he acts before he has 


8 


GENERAL RULES 


received the document and determined its authenticity and 
integrity,—unless he has been previously informed of its 
contents by authority of the grantor. A mere executor 
cannot withhold the favor granted, whereas a voluntary 
or proper executor may refuse it, though he should not 
do so except for good reasons. If any condition or 
mandate is imposed on the executor in the rescript, he 
has to comply with that mandate. The execution of 
rescripts which affect the external forum, for instance, 
dispensations from public impediments, must be done in 
writing. 

To recall a rescript, the revocation must be duly inti¬ 
mated to the petitioner. No rescript is recalled by a 
contrary law, unless expressly mentioned. A rescript 
does not lose its force by reason of the vacancy of the 
Holy See or of a bishopric. 

A favor denied by one S. Congregation or Office cannot 
be validly granted by another without the express con¬ 
sent of the former. Nor can the vicar-general of a 
diocese grant a petition which has been refused by the 
Ordinary, or vice versa, since the vicar-general and the 
bishop constitute one court. 

TITLE V 

PRIVILEGES 

(Can. 63-79) 

Privileges are more or less permanent concessions made 
by the legislator against the law. They were granted 
anciently by popes and emperors. With the beginning of 
the second millennium they became more numerous, es- 


PRIVILEGES 


9 

pedally those of exemption, so that Gratian 4 thought it 
well to deal with privileges more elaborately. 

Privileges are regarded as “a sore on the law,” and 
can be directly granted only by the legitimate authority. 
Indirectly they may be obtained by communication and 
prescription. Communication means participation in a 
privilege, either fully and absolutely, or imperfectly and 
relatively. Full and absolute communication is called 
acque principalis and embraces only those privileges which 
were imparted to the original grantee directly and forever, 
without special relation to a certain place, thing, or person, 
and with due consideration of the capability of the re¬ 
ceiver. Thus the privileges granted to bishops in can. 
349 are personal, and consequently cannot be communi¬ 
cated, at least not habitually. 5 Imperfect and relative 
communication (called accessoria) has this peculiarity 
that privileges thus acquired are increased, diminished, 
or lost to the second grantee in proportion to their in¬ 
crease, decrease, or loss in the original grantee. Thus, if 
an archconfraternity losers a part or all of its indulgences, 
they are lost to all the aggregated confraternities. 

Since privileges are perpetual, unless the contrary is 
evident, they are not lost by non-use or contrary use. 
However, a burdensome privilege, for instance, advowson 
(iuspatronatus ), may be lost by contrary prescription. 

4 See his dictum ad c. 16, C. 25, q. 1. 

6 When Archbishop Hanna, of San Francisco, asked whether 
bishops could communicate the privileges mentioned in can. 349, 
§ 1, n. I (blessing of devotional articles and attaching indul¬ 
gences), the S. Poenit., July 18, 1919 ( A. Ap. S., XI, 332), an¬ 
swered: “Negative” The answer, indeed, could not be other¬ 
wise; but it may be asked: are these articles intended only for 
bishops and certain religious orders? 


10 


GENERAL RULES 


Otherwise privileges are lost only by direct revocation 
intimated by the grantor, but not by a general law, unless 
a clause purposely and expressly recalling contrary privi¬ 
leges is added. 

Privileges cease by renunciation if accepted by the 
competent superior. Personal privileges expire with the 
person; real privileges cease upon the complete destruc¬ 
tion of the thing or place, unless the latter are resuscitated 
after fifty years. Privileges granted orally (vivae vocis 
oraculo) may be used by the grantee in the internal 
court of conscience; but in the external forum proof 
may be demanded. 

A species of privileges are faculties granted forever, 
or for a limited time, or for a definite number of cases. 
Such are the quinquennial faculties issued March 17, 
1922, which, however, were never published in the official 
Acta of the Holy See. These do not expire with the 
cessation of the bishop’s authority, which may occur by 
death, resignation or transfer, but pass to the vicar 
capitular or administrator; they are also intended for 
the vicar-general. 

The interpretation of privileges and faculties must be 
made according to the wording of the text, without ex¬ 
tension or restriction, but always in such a way that 
some real favor is granted. 

TITLE VI 

DISPENSATIONS 

(Can. 80-86) 

Dispensations, 1. e., relaxations of the law in a par¬ 
ticular case, may be granted by the lawgiver, his sue- 


DISPENSATIONS 


ii 


cessor or superior, and by those to whom the faculty of 
dispensing has been delegated. The consequence is that 
Ordinaries have no power to dispense from the common 
law of the Church, i. e., from the laws of the Code, 
not even in particular cases, unless (a) they have received 
a direct 6 or indirect grant of power to dispense, and 
(b) in cases (can. 81) in which recourse to the Holy 
See is difficult and there is at the same time grave danger 
in delay and the dispensation requested is one which the 
Holy See is wont to grant. Most probably this rule 
may also be applied to matrimonial dispensations. In 
both cases (a and b) Ordinaries can grant dispensations 
only for a just and reasonable cause, otherwise they are 
illicit and invalid. When there is a doubt as to the suf¬ 
ficiency of the cause, a dispensation may be lawfully 
asked for, and licitly and validly granted. 

Pastors or parish priests cannot dispense from either 
a general or a particular law of the Church, unless they 
have expressly received this power, which is granted them 
in can. 1245 concerning feast and fast in individual cases. 
But they have no power to dispense from the proclama¬ 
tion of the banns. If such a dispensation is desired, they 
must apply to the Ordinary, or may obtain power through 
communicated faculties. The Code also grants power in 
can. 1044, as compared with can. 1098. 

Confessors may dispense penitents in all occult cases 
of irregularity of a very urgent nature, when the Ordi¬ 
nary cannot be approached and there is danger of a 
great loss or infamy (can. 990, § 2). Confessors also 
may dispense in the cases mentioned in canons 1043-1045. 
But dispensations, as also the faculties of dispensing in 
a certain case, must be interpreted strictly. 

6 See can. 900, 1043, 1045, 1245, 2237. 


BOOK II 


ECCLESIASTICAL PERSONS 

A person, in the ecclesiastical sense of the word, is 
one who has received baptism in the Church of Christ. 
After he has reached twenty-one years, a person is of age 
(major), while below this age he is called a minor. 
Puberty for boys begins with the fourteenth year, com¬ 
pleted, and for girls with the twelfth year, completed. 
Infants are such as have not yet completed the seventh 
year of age. To the same class belong all adults habit¬ 
ually destitute of reason. 

A pastor and Ordinary becomes one’s own pastor or 
Ordinary by reason of domicile or quasi-domicile. Dom¬ 
icile is determined by actual sojourn, together with the 
intention of never leaving the parish or diocese, or by 
an actual stay of ten years. Quasi-domicile is fixed by 
actual stay, combined with the intention of remaining 
for the greater part of the year or by a stay protracted 
without moral interruption to the greater part of the 
year. There is also a diocesan domicile or quasi-dom¬ 
icile. The son follows the domicile or quasi-domicile 
of his father, an illegitimate child shares the domicile 
or quasi-domicile of his mother. The wife shares that 
of her husband as long as she is not separated from 
him. 

A peregrinus is one who has left a place though he 
retains his domicile or quasi-domicile there. A vagus is 
one who has no domicile or quasi-domicile. Pastors 

12 


PRECEDENCE 


13 


should in no case induce persons of another rite, whether 
Latin or Oriental, to attach themselves to a rite not their 
own. Their own rite is established by the fact of 
baptism. 

A wife may conform herself to her husband’s rite, but 
not vice versa. 

Juridical acts, in order to be valid, must be human acts, 

i. e., performed without violence or substantial error; 
acts inspired by grave fear are at least rescindable, as a 
rule. 

The expression <e audito parocho” does not affect the 
validity of an act. For instance, can. 476, § 3 demands 
that the Ordinary appoint a curate or assistant “after 
having heard the pastor” ; but the appointment is valid even 
if the pastor’s advice was not followed but merely heard. 

PRECEDENCE 

Concerning precedence the Code establishes the follow¬ 
ing rules: 

1. Cardinals precede all other dignitaries, except an 
apostolic legate who is sent on extraordinary occasions, 
for instance, to a Eucharistic Congress. 

2. Archbishops take precedence according to the time 
of their promotion. 

3. Bishops, according to the time of their promotion; 
no distinction is made between secular and religious 
bishops. 

4. The cathedral chapter, if in cor pore. The same 
rule applies (by deduction from can. 427) to our diocesan 
consultors when they are present in a body. The vicar- 
general precedes all the clergy. 

5. Prelates regular or superiors of exempt clerical in¬ 
stitutes. Abbots precede individual canons or consultors, 


14 


ECCLESIASTICAL PERSONS 


but not cathedral chapters as such, i. e., when present 
in a body. 

6. Rural deans take precedence over pastors and other 
priests. 

7. Cathedral pastors over all other pastors and curates. 

8. Pastors over all other priests. 

9. A priest who takes the pastor's place, either during 
his absence or whilst he is disabled, precedes the assist¬ 
ants (curates), no matter whether or not he is a re¬ 
ligious. 

10. The assistants or curates precede all the rest of 
the clergy assigned to a parish church. 

11. The secular clergy precede the religious clergy, but 
not in the latter’s own churches, where the religious pre¬ 
cede the secular clergy, provided the religious belong to a 
clerical institute. 

12. Among religious the rules of precedence are 
as follows: 

(a) First come the Canons Regular; then 

(b) The Monks, as, for instance, Benedictines, Cis¬ 
tercians, etc.; 

(c) The Clerical Regulars (with solemn vows) ; 

(d) The Mendicants follow according to the time of 
quasi-possession. Among the Friars Minor the order 
of precedence is: Brown Franciscans, Black or Conven¬ 
tual Franciscans, Capuchins. 

(e) Religious Congregations: (1) Papal institutes, 

(2) diocesan institutes. The same among the religious 
societies. 

13. Confraternities follow in this order: (1) Terti- 
aries, (2) Archconfraternities, (3) Fraternities, (4) 
Pious Unions. 

Precedence is reckoned by the distance from the pon¬ 
tificating or officiating minister; the closer to him the 


INCARDINATION IN A DIOCESE 


IS 

higher the precedence. Hence the last in rank are near¬ 
est to the cross-bearer; in processions the girls should 
lead, the boys follow. 


PART I 
THE CLERGY 

The distinction between clergy and laity is of divine 
institution, not a human invention which may be altered, 
or interfered with, by the secular power. The difference 
between bishops, priests, and ministers is also of divine 
right. This latter gradation constitutes the sacred hier¬ 
archy, by virtue of which clerics are subordinate to one 
another and enjoy ecclesiastical power in various degrees. 
There are between the three degrees mentioned others 
of merely ecclesiastical origin and authority. Thus pas¬ 
tors, as such, are an ecclesiastical institution, although, 
as far as their priestly character is concerned, they belong 
to the divinely established hierarchy. 

The initiatory ceremony of tonsure raises one to cler¬ 
ical rank; it is no sacrament, but the stepping stone to 
further advancement in the clerical rank. 

TITLE I 

INCARDINATION IN A DIOCESE 

(Can. 111-117) 

There is no longer any exeat required for laymen. 
The bishop or Ordinary may adopt a candidate for the 
priesthood into his diocese, and may even defray the 
expenses of his secondary schooling, i. e., high school and 
college, and for the first term of his theological course 


16 


THE CLERGY 


(can. 976, § 1); but only after the reception of the -first 
tonsure does the candidate become incardinated in the 
diocese into which he has been adopted. 

What bishop is entitled to confer the tonsure? The 
episcopus proprius, according to can. 956, i. e., he who 
is the candidate’s bishop by reason of domicile; or, if he 
is prevented by a just cause, any bishop, after having 
received dimissorials from the ordinand’s own bishop. 
But what if John ( ordinandus ) has relinquished his dom¬ 
icile and acquired no new one in the diocese of his 
adoption, but established a quasi-domicile in the sem¬ 
inary or city where the seminary is located? A quasi¬ 
domicile is insufficient to render a bishop proprius in the 
sense of can. 956. Who, then, is the episcopus proprius? 
According to a decision 1 —which, however, was never pub¬ 
lished in the Add Apostolicae Sedis —the episcopus pro¬ 
prius of those who have no domicile, is the Ordinary in 
whose diocese the ordination takes place, provided the or- 
dinand acquires a domicile there by taking the oath ac¬ 
cording to can. 956. However, with all due respect to 
that decision, it may be permitted to state that this would 
require at least some moments’ stay in the diocese where 
John intends to live and work. The oath refers to the 
intention of remaining in the domicile forever. Now, 
if the ordaining bishop should happen to be the one in 
whose diocese the seminary is located, but not the one 
into whose diocese John is adopted, what then? There 
is a gap somewhere. The only reasonable solution ap¬ 
pears to be that the adopting bishop is supposed to be 
John’s own bishop, who may, therefore, either confer 
the tonsure himself, or request the Ordinary in whose 
diocese the seminary is located to do so in his stead or 
permit the oath to be taken by proxy. 

1 See our Commentary, Vol. IV, p. 424. 


INCARDINATION IN A DIOCESE 


17 


From the date of the reception of the tonsure, then, 
a cleric is incardinated in the diocese for the service of 
which he was promoted. This vicar dination is supposed 
to be permanent and unconditional ; for the Code does not 
favor conditional incardination, except in case of religious 
(can. 641). The secular clergy must be perpetually and 
permanently incardinated, in order to obviate the danger 
of roving. Consequently, excar dination also is perma¬ 
nent and absolute. 

How can a priest leave one diocese and join anotherf 
There may be good reasons for a change, such as the 
climate, lack of success, some fault in the priest himself, 
the Ordinary’s attitude towards him, etc. The Code 
mentions two well-known causes, viz.: necessity and utility, 
which admit of a wide interpretation. If either of these 
obtains, incardination is admissible. The formalities re¬ 
quired are: 

(a) The incardinating Ordinary must obtain written 
and, if necessary, secret information as to the cleric’s 
parentage, life, conduct and studies, especially when there 
is question of incardinating men of a different lan¬ 
guage and nation; the excardinating bishop is bound in 
conscience to make a truthful statement regarding these 
matters. 

(b) The clergyman to be incardinated must take an 
oath in the presence of the incardinating Ordinary or 
his delegate, promising to serve the new diocese per¬ 
petually. 

These two formalities are not required: (a) When a 
strange bishop confers a residential benefice, such as a 
pastorate, curacy, or professorship on the clergyman 
who is to be incardinated, provided the latter’s Ordinary 
has given his consent in writing; (b) When the clergy¬ 
man receives a written leave of permanent absence from 


i8 


THE CLERGY 


his own Ordinary. In both cases excardination and in- 
cardination take effect at once. 

Papers of incardination and excardination cannot be 
granted by a vicar-general without authorization from 
his Ordinary, nor by a vicar capitular or administrator, 
except after the episcopal see has been vacant for a year, 
and then only with the consent of the chapter or the 
diocesan consultors. 

Concerning religions, the Code (can. 641) enacts, with 
regard to incardination, as follows: The bishop may 
receive a religious either unconditionally or on trial; if 
he receives him unconditionally, the religious is by that 
fact incardinated in the diocese; if on three years’ trial, 
the term may be protracted for three years more. Hence 
the whole term of trial may last six years, but no longer. 
At its expiration the religious becomes ipso facto incar¬ 
dinated, unless he is previously dismissed. This new law 
went into effect May 19, 1918, and consequently runs 
from that date, no matter whether the Ordinary notifies 
a priest or not. Those who were adopted into a di¬ 
ocese before or on the date mentioned, become ipso 
facto incardinated on May 19, 1924, unless they are dis¬ 
missed before that date. 

TITLE II 

RIGHTS AND PRIVILEGES OF THE CLERGY 

(Can. 118-123) 

Only clerics can obtain the power of order or juris¬ 
diction, ecclesiastical pensions, and benefices or offices. 
In virtue of their exalted state the faithful owe respect to 
clergymen according to their rank. Every real injury 


RIGHTS AND PRIVILEGES 


19 


done to the clergy is looked upon as a sacrilege, punish¬ 
able by excommunication, reserved to the Ordinary 
(can. 2343), if the injured cleric is inferior to the 
bishop. 2 

Pastors and all priests who do not belong to the class 
of Ordinaries, should not be cited before the civil 
court, not even as witnesses, without the permission of 
the Ordinary. The clergy, from immemorial times, en¬ 
joyed a privileged court (privilegium fori; see can. 

2341) • 

All clergymen are exempt from military service and 
not obliged to take upon themselves any civil office 
unbecoming to their state. If a clergyman should be¬ 
come insolvent, enough should be left him to enable him 
to live decently. 3 But he is not free from the obligation 
of satisfying his creditors as soon as he can. Clerical 
privileges attached to the state cannot lawfully be fore¬ 
gone by individual clerics. 

TITLE III 

OBLIGATIONS OF THE CLERGY 

The clergy, and more especially, pastors, being “the salt 
of the earth,” should be models to laymen by leading an 
exemplary life. The Code admonishes the Ordinaries to 
see to it that clerics go to confession frequently, make 

2 This is called privilegium canonis, because it contains several 
synodal enactments embodied in one canon by the Second Lat- 
eran Council of 1139; see c. 29, C. 17, q. 4: “Si quis suadente 
diabolo. . . 

3 This is styled beneficium competentiae, transferred from 
the militia terrena to the militia coelestis; see c. 3, Odoardus, X, 
III, 23. 


20 


THE CLERGY 


daily meditations, visit the Blessed Sacrament often, cul¬ 
tivate devotion to the Blessed Virgin by reciting the 
Rosary, and examine their conscience every day. At 
least once every three years they should make a retreat. 

More particular obligations are the following: 

1. To show respect and obedience towards the Or¬ 
dinary ; 

2. To accept any change the Ordinary may impose, if 
the needs of the Church require it; 

3. To study the ecclesiastical science, even after 
ordination, and to avoid profane and falsely so-called 
science; 

4. To undergo an examination annually for the space 
of three years after ordination, unless exempted by the 
Ordinary for a just cause. Religious who are pastors 
or curates cannot be compelled to undergo this examen 
before the Ordinary or his delegate, if they have been 
examined by their own superiors, or their delegates, as 
prescribed by canons 130 and 590. If the Ordinary 
should attempt to force them to do so, on account of 
the superior’s negligence, recourse may be had to the 

S. C. of Religious; 4 

5. To attend the pastoral conferences that are held 
several times a year. This rule binds all clergymen, 
secular and religious, who have charge of souls; 

6. To observe celibacy and avoid dangerous associa¬ 
tion with women who might cause suspicion; 

7. To recite the Breviary daily; 

8. To wear the clerical dress; 

9. To refrain from occupations which involve financial 
risk or loss of time and undermine respect for the cler¬ 
ical state; 

10. To keep aloof from indecorous, and especially in- 

4 Commissio Pont., July 14, 1922 ( A . Ap. S., XIV, 526). 


ECCLESIASTICAL OFFICES 


21 


decent and scandalous spectacles, balls, and pompous 
feasts; also to abstain from voluntary military ser¬ 
vice ; 

ii. Not to engage in any business or trade, either for 
themselves or for others. 

The duty of residence will be explained later. 

TITLE IV 

ECCLESIASTICAL OFFICES 

(Can. 145 - 195 ) 

I. Definition: An ecclesiastical office is a charge, per¬ 
manently constituted by either divine or ecclesiastical 
law, and conferred according to the sacred canons, by 
which some ecclesiastical power, whether of orders or of 
jurisdiction, is communicated. If to these marks are 
added the essential features of a benefice, all that the Code 
prescribes concerning benefices must also be applied to 
offices. It is therefore appropriate to point out here 
what constitutes a benefice. 5 

A benefice, says can. 1409, is a juridical entity per¬ 
manently established by competent authority, consisting 
of a sacred office and the right of receiving the revenues 
from the endowment attached thereto. This definition 
clearly designates the material element attached to the 
notion of benefice. We say, material, because of the 
revenues which are granted for the sake of the office. 
These revenues must be stable, for they flow from a dos 

6 It may not be amiss to draw attention to the letter of the 
Apostolic Delegate, Msgr. Bonzano, of Nov. 10, 1922, wherein 
it is stated that a parish is always an ecclesiastical benefice, 
whether or not it has the proper endowment, provided it be 
erected according to the provisions of can. 1415, 3* 


22 


THE CLERGY 


or permanent endowment. In former days such an en¬ 
dowment consisted chiefly of fundi, real estate produc¬ 
tive of fixed revenues. But the Code has widened the 
range of endowment, for it enumerates among the various 
sources of endowment any kind of property or income, 
contributions due from individuals or corporations, and 
voluntary offerings of the faithful, such as pew-rent, plate 
collections, subscriptions, stole fees and choir distribu¬ 
tions (can. 1410). 

2. Appointment to office presupposes, first and above all 
other things: 

(a) A vacancy in the office to which the appointment 
is to be made. Vacancy may be caused by the loss of an 
office, and may be either de facto or de hire, or 
dc hire et facto. In order to confer an office validly, 
the latter must be at least de 'hire vacant. No one can 
validly hold two incompatible offices at the same time. 
Thus no one can at the same time be pastor of two 
distinct parishes, unless they are properly united (can. 
460). Two offices are called incompatible if the obliga¬ 
tions attaching thereto cannot be fulfilled by any one per¬ 
son. 

(b) Only the competent authority" can validly confer 
a vacant office. Whenever an appointment is made by 
free collation, as is the general rule in our country, 
the local Ordinary is entitled to confer the office. The 
vicar-general, however, needs a special mandate for that 
purpose. 

(c) The requisites and solemnities are the following: 
The candidate must possess the necessary qualifications, 
and, all things being equal, the fitter candidate should 
be preferred. An office connected with the care of souls 
can be entrusted only to priests. The time within which 
an office is to be filled is six months after notice of 


ECCLESIASTICAL OFFICES 


23 


vacancy. This also applies to pastoral offices (can. 458). 
As to the manner of making the appointment, the Code 
gives no general rules. 

(d) To take full effect, an appointment must be fol¬ 
lowed by taking possession of the office, or installation, 
although the appointment itself conveys, as they say, the 
ius in re, not only ad rem . 6 

(e) The loss of an office may be brought about by 
resignation, privation, removal, transfer, or lapse of time. 
Here we deal only with resignation, privation, and lapse 
of time, because the other three modes of losing an of¬ 
fice are best considered under removal and transfer of 
pastors. 

A resignation may be tendered by any one who is in 
full possession of his mental faculties, provided he does 
so freely, without fraud, error, or simony. But the 
resignation, to be valid, must be accepted, and there 
should be a just and proportionate reason for accepting it 
on the side of the ecclesiastical superior. It is required 
that all resignations be made in writing, or in the pres¬ 
ence of two witnesses. The Ordinary should inform the 
resignee of his acceptance within a month, at least as 
a rule. 7 

Privation of office, if not a purely administrative meas¬ 
ure, means a penal enactment, which naturally supposes 
a crime, or at least a just cause. 8 To deprive one of 

6 Since our parishes are benefices, it would be proper for in¬ 
stallation to be made by the local Ordinary or his delegate, espe¬ 
cially the rural dean; see can. 1443^1445. 

1 The Ordinary may accept a resignation even though more 
than a month has elapsed after the resignation has been tendered, 
and the resignee may recall his resignation before it is ac¬ 
cepted; Commissio Pont., July 14, 1922 (A. Ap. S., XIV, 526 f.). 

8 j£ privation is to be inflicted as a penalty, the rules on crim¬ 
inal trials (can. 1933-1959) must be observed. 


24 


THE CLERGY 


an irremovable office, the Ordinary must proceed legally, 
i. e., by way of ecclesiastical trial, as laid down in Book 
IV. In case of a removable office, he may proceed with¬ 
out legal formalities, for a just reason, even though no 
crime may be involved. Now-a-days the administrative 
mode of removal is generally employed. 

Lapse of time means that an office had been conferred 
for a certain length of time. If the Ordinary has made 
an appointment with the clause, “ad beneplacitum no¬ 
strum ” the respective office-holder loses his office as soon 
as the Ordinary goes out of office, whether by death, res¬ 
ignation, or transfer. 


TITLE V 

ORDINARY AND DELEGATED POWER 

(Can. 196-210) 

Jurisdiction, or the public faculty to rule or govern 
others, may concern either the external or the internal 
forum. The latter ( forum conscientiae ) may be exer¬ 
cised in or outside of the Sacrament of Penance. Or¬ 
dinary jurisdiction is attached to an office by law. Thus 
bishops enjoy the ordinary power of appointing to va¬ 
cant offices. Those who possess ordinary power may 
delegate it to others, either entirely or in part, unless 
otherwise provided for. Can. 152 states that appoint¬ 
ment to office is reserved to the local Ordinary. 

Delegated jurisdiction is one entrusted to a person, 
more especially by reason of personal qualities. A juris¬ 
diction delegated by the Apostolic See may be subdele¬ 
gated either habitually or for a certain case, unless sub¬ 
delegation has been expressly forbidden, or unless the 


ORDINARY AND DELEGATED POWER 25 

jurisdiction was given for the sake of personal qualities. 
Universal delegated jurisdiction (ad universitatem cau - 
sarum ) may be subdelegated in particular cases, for in¬ 
stance, for one special marriage case. But subdelegated 
jurisdiction cannot be further subdelegated, unless ex¬ 
press permission has been given to do so. 

A delegate who exceeds the limits of his mandate, 
either in regard to objects or persons, acts invalidly. 
Hence a delegation ceases to be effective as soon as the 
mandate is fulfilled, or the time has expired, or the dele¬ 
gation has been revoked, or the delegate has resigned 
and his resignation has been accepted. 

Pastors, or their substitutes, or other priests endowed 
with general delegation, cannot delegate jurisdiction for 
hearing confessions to secular or religious priests, or 
extend the jurisdiction of those already approved beyond 
the limits of places and persons for which or for whom 
they had been approved, without a special faculty or 
mandate from the local Ordinary. 9 

The Church supplies the necessary jurisdiction (“sup- 
plet Ecclesia”), when a common error or positive and 
probable doubt, either of law or fact, arises in both the in¬ 
ternal and the external forum. Can. 209 provides for 
the common good and the tranquillity of conscience. 

TITLE VI 

RETURN OF Cl ERGYMEN TO THE LAY STATE 

(Can. 211-214) 

This may be brought about by a sentence or by degra¬ 
dation in the case of clerics in higher orders. A cleric 

9 Commissio Pont., Oct. 16, 1919 (A. Ap. S., Vol XI, p. 477); 
sec our Commentary, Vol. IV, p. 262. 


26 


THE CLERGY 


in minor orders may be reduced to the lay state if he 
is unfit for the clerical state. If grave fear or compul¬ 
sion are pretended, a trial is required for those in sacred 
orders. 


THE HIERARCHY 

It was logical to insert the territorial organization be¬ 
fore dealing with the hierarchy proper; for laws are, as 
a rule, territorial (can. 8). Organization, too, proceeds 
from authority, which is here supposed to exist and to 
exert its influence over provinces, dioceses, or parishes. 

Parishes are organized by the local Ordinaries, whilst 
provinces and dioceses are established by the Holy See. 
Parishes came into existence in the fifth century in the 
East, and about two centuries later in the West. Their 
progress was slower in cities than in the country. 

What is a parish f It is a portion of the diocese which 
has its own church and people, and a rector entrusted 
with the care of souls, who holds this part of the diocese 
as his own territory. 

Are there canonical parishes in America? This ques¬ 
tion has been answered affirmatively by the S. Congre- 
gatio Consistorialis. 10 

Concerning national or linguistically distinct parishes, 
the Code enacts that none such should, in future, be 
established in the same city or territory without a special 

10 The substance of the Declaratio of Aug. i, 1919 (A. Ap. S., 
XI, 346) is: Wherever the following three conditions are veri¬ 
fied, there is a canonical parish, no matter whether its rector 
be removable or irremovable. The three conditions are: (1) 
fixed boundaries, (2) parochial residence, (3) endowment or at 
least a solid reason to expect sufficient support to be forthcoming. 
The Ordinaries may erect subsidiary parishes or chaplaincies, but 


RETURN TO THE LAY STATE 


27 


Apostolic indult. With regard to those already existing, 
no change is to be made without consulting the Apostolic 
See. The nihil innovandum of can. 216, § 4 is a wide 
term, but refers to any change in existing parishes of 
this character. 

Does it apply also to division? In order to answer 
this query, the canons concerning division may find a 
place here. Can. 1427 allows local Ordinaries to divide 
parishes of any kind, provided there be a just and 
canonical reason, because a division (for a union or 
transfer) made without a canonical reason is null and 
void (can. 1428, § 2). A canonical reason exists when 
there is great difficulty on the part of the people to 
come to the parish church or the parish priest cannot 
properly attend to the spiritual needs of the parishioners 
because there are too many of them. 11 The formalities 
for division are defined in can. 1428. The local Ordi¬ 
nary must draw up an authentic document, summon the 
diocesan consultors to hear their opinion, and also ask 
those who are interested in the division. These for¬ 
malities seem to affect the validity of the act. No recourse 
in suspensivo is admissible. Hence, if recourse is had 
against a division, it remains in force until a higher 
authority decides otherwise. 

Returning to the question of national churches, Does 
the division of such a parish require the cooperation of 
the Holy See? Our answer, until some authentic in- 

only within the limits of a canonical parish. A letter of the 
Apostolic Delegate, Nov. 10, 1922, says that a special decree of 
the Ordinary is not necessary for the erection of a parish, if 
this parish already had its limits assigned. In other words, 
those parishes which met the three conditions mentioned above 
at the moment the Code went into effect were automatically 
raised to the rank of canonical parishes. 

11 See Vol. VI of our Commentary, p. 507 ft'. 


28 


THE CLERGY 


terpretation ensues, is as follows: If the change means 
a change from one language to another, or complete 
amalgamation with another parish, the Holy See must be 
asked. 

The next question is that of dismembration. Dis¬ 
memberment, according to can. 1421, takes place when a 
part of the territory or the revenues belonging to one 
benefice are taken away and united to another benefice. 
Such a measure can be decreed by the local Ordinary 
with regard to all parishes, says can. 1527, § 1, if the 
territory only is to be dismembered. 12 Are our national 
parishes included in this general power? We hardly 
think so. For such a dismemberment would certainly 
be an innovation of the already existing national parish. 
Besides, if this were permissible, it would be easy to 
nullify can. 216, § 4, by gradually dismembering the 
entire territory assigned to a national parish. 13 Whether 
a national parish may be divided into two or more par¬ 
ishes of the same language must be answered in the same 
way. It would be an innovation, and hence requires 
the consent of the Apostolic See. 

TITLE VII 

THE SUPREME POWER AND THOSE WHO PARTAKE 
THEREOF BY ECCLESIASTICAL LAW 

I. The Roman Pontiff, being the successor of St. 
Peter, possesses not only an honorary primacy, but su¬ 
preme power of jurisdiction in the whole Church con- 

12 See a case solved by. the S. C. C., Jan. 14, 1922 ( A . Ap. S., 
XIV, 229 f.), where the apparent conflict between can. 1422 and 
can. 1427 is solved by pointing to alienation with and without 
compensation. 

13 There is now no doubt that religious parishes, being bene¬ 
fices (can. 1422), cannot be divided without the consent of the 


THE SUPREME POWER 


29 

ceming matters of faith and morals as well as discipline 
and government. 

This power is truly episcopal, ordinary, and immediate, 
extending to each and every church no less than to each 
and every pastor, and to all the faithful, and is inde¬ 
pendent of every human authority. 

The Roman Pontiff, lawfully elected, obtains, by di¬ 
vine right, full power of supreme jurisdiction the mo¬ 
ment he accepts office. All affairs of major import 
(causae maiores), by their nature or by positive law, 
are reserved to him. 

If the Roman Pontiff resigns his office, the resigna¬ 
tion is valid without regard to its acceptance by the 
Cardinals or any one else. 

2. No general council can be held except by convoca¬ 
tion of the Roman Pontiff, who presides over it, either 
himself or by his delegates. 

3. The Cardinals form the senate of the Roman Pon¬ 
tiff and are his main counsellors and helpers in the gov¬ 
ernment of the Church. They rank according to orders; 
bishops, priests, and deacons, and are created by the Pope. 14 

4. The Roman Court consists of Congregations, Tri¬ 
bunals, and Offices. There are eleven Sacred Congrega¬ 
tions, three Tribunals, the most ancient and important of 
which is the Sacra Romana Rota, and four main Offices, 
viz., the Apostolic Chancery, the Apostolic Datary, the 
Reverenda Camera Apostolica, and the Secretariate of 
State. 

5. The Legates of the Roman Pontiff are nuncios, 
internuncios, or Apostolic delegates. The latter are sent 

Holy See. Correct note 15, p. 509, Vol. VI of our Commentary 
accordingly,. 

14 The title Cardinal-ekcf is a misnomer;—this for the benefit 
of newspaper editors. 


30 


THE CLERGY 


with ordinary power to countries where the ecclesiastico- 
political relations do not require diplomatic representation. 
Besides their ordinary jurisdiction they receive spe¬ 
cial faculties. 15 

6. Plenary and provincial councils are convoked, with 
the permission of the Roman Pontiff, by the metropoli¬ 
tans, who should hold a provincial council at least once 
every twenty years. The acts and decrees of both kinds 
of councils should not be promulgated before the S. C. 
Concilii has examined and approved them. 

7. Metropolitans or archbishops preside over eccle¬ 
siastical provinces. Their rights over their suffragans 
are limited to canonical visits in case of neglect, to 
ecclesiastical trials in the second instance, and to certain 
controversies in the first instance. They may pontifi¬ 
cate in any church of the entire province, including those 
of exempt orders, and wear the pallium on this occasion. 

8. Apostolic vicars and prefects enjoy the same rights 
and faculties in their respective territories as residen¬ 
tial bishops in their dioceses, unless the Apostolic See 
makes reservations. 

9. Apostolic administrators are appointed either for a 
limited time or permanently. Permanent administrators 
enjoy the same rights and honors, and are bound by the 
same obligations, as residential bishops. Administrators 
appointed for a limited period only have the same rights 
and duties as vicars-capitular, but are not obliged to 
apply the Mass for the people; their honorary preroga¬ 
tives are those of Apostolic protonotaries de numero 
participantium. 16 

10. A prelate or abbot t( nullius >} presides over an ex- 

15 See Vol. I of our Commentary, p. 265 ff. 

16 As determined by the Constitution of Pius X, " Inter multi - 
plices,” Feb. 5, 1905. 


THE EPISCOPAL POWER 


3i 


empt territory belonging to no diocese. If this territory 
has not even three parishes, such a prelacy or abbey is 
ruled by special laws; but if there are three or more, 
the prelate or abbot nidlius enjoys the same jurisdiction 
as a residential bishop and is bound by the same obliga¬ 
tions. 


TITLE VIII 

THE EPISCOPAL POWER AND THOSE WHO PARTAKE 

THEREOF 

(can. 329-362) 

Residential Bishops have the right and the obliga¬ 
tion to govern their dioceses in spiritual and temporal 
matters. Although endowed with legislative, judiciary, 
and coercive powers, they are bound by the common law, 
viz., the Code. Within the range of the common law 
they may enact laws of their own, which bind as soon 
as promulgated; the bishops themselves may choose the 
manner of promulgation. 

Coadjutor Bishops are appointed by the Holy See. 
The letter of appointment in each case defines the powers 
conferred, which may be limited when the Ordinary is 
not entirely disabled. 

One of the rights and duties of a residential bishop 
is to convoke diocesan synods, which should be held at 
least once every ten years. An administrator is not en¬ 
titled to call a diocesan synod. The proper subject-matter 
of a synod are the particular needs and advantages of the 
clergy and people of the diocese. Those who must be 
called and are obliged to be present are: The vicar- 
general, the cathedral canons or diocesan consultors, the 
rector of the seminary, the rural deans, a deputy of col- 


32 


THE CLERGY 


legiate chapters, all the pastors of the city where the 
synod is held (which as a rule ought to be the cathedral 
city), at least one pastor from every deanery, to be 
elected by the priests of that respective deanery who 
have charge of souls, governing abbots and religious 
superiors. Besides, the bishops may call others of the 
secular clergy and religious superiors, but not exempt 
religious. 

The bishop may appoint commissions, which should 
prepare the matter to be laid before the synod, but the 
sole legislator is the bishop himself, and therefore the 
other participants have only a deliberative voice in the 
proceedings. A decisive vote, however, is granted to 
those entitled to be present in case of synodal examiners 
and pastors-consultors, as these, though proposed by the 
bishop, must be approved by the synod (can. 385). 

THE DIOCESAN COURT 

(can. 363-390) 

The diocesan court consists of those persons who 
assist the bishop or his representative in the government 
of the diocese. It is made up of the vicar-general, the 
oflicialis, the chancellor, the promotor iustitiae or diocesan 
attorney, the defender of the marriage bond, the synodal 
judges and examiners, the pastors-consultors, auditors, 
notaries, couriers, and beadles. 

The bishop is obliged to appoint a vicar-general when 
it is necessary for the good government of the diocese. 
The Code demands that a vicar-general be versed in 
theology and canon law, not less than thirty years of 
age of good moral character, and a prudent man. The 
vicar-general has the same power as the bishop in spirit¬ 
ual and temporal matters, with the exception of what 


THE DIOCESAN COURT 


33 


the law, or the bishop himself, reserves to the Ordinary. 
He ranks first among the clergy of the diocese and pre¬ 
cedes the cathedral chapter in the choir as well as at 
chapter meetings. His authority expires with the ex¬ 
piration of that of the bishop. The character of the 
vicar-general’s office renders it evident that his jurisdic¬ 
tion should not be entrusted to the chancellor or secre¬ 
tary, because the latter’s office is that of a scribe, or, as 
they say in Rome, a m&nutante. 

The officialis of the diocese is an important personage, 
for he enjoys ordinary power in judiciary matters (can. 
1573 )- 

The chancellor’s duty is to file official documents in 
the archives, keep them in chronological order and prop¬ 
erly indexed. The Code insists rigorously, and most 
justly, on orderly book-keeping. 

Synodal examiners and pastors (not parish) consult or s, 
no less than four in number, nor more than twelve, are 
elected at, or outside, the synod for a period of ten 
years, after which their office ceases. Examiners and 
consultors may be the same persons, but not in the same 
cause. 

The law regarding canons (can. 391-422) is of little in¬ 
terest in our country, except in so far as the position 
of the diocesan chapters is held by the diocesan con¬ 
sultors. For they take the place of the cathedral chap¬ 
ter where such a chapter does not exist. The bishop 
appoints the consultors, as a rule, for a three years’ 
term, and is, in certain matters for instance, in aliena¬ 
tion cases, dependent on their consent. Since they are 
a substitute for the cathedral chapter and therefore form 
a body, it is evident that their advice or consent must 
be given coliegialiter, i. e., in a body. The S. Congrega¬ 
tion of the Consistory has decided that our diocesan con- 


34 


THE CLERGY 


suitors, provided there be at least five or six, are en¬ 
titled to elect an administrator when a vacancy of the 
episcopal see occurs. 17 Of course, the election must be 
conducted according to the Code. 18 

A vacancy of the episcopal see may be brought about 
by the death, resignation, transfer, or removal of the in¬ 
cumbent. Sometimes an Apostolic administrator has al¬ 
ready been appointed, and in this case the diocesan 
consultors have no right to elect an administrator, gen¬ 
erally called vicar-capitular. Otherwise he may be 
elected, and after canonical election, without any further 
formality, assumes the ordinary power of a bishop, ex¬ 
cept in specially reserved cases. The vicar-capitular 
should endeavor to make no innovations prejudicial to 
the successor or the diocese. 

The Code does not strictly prescribe the appointment 
of rural deans, but gives the impression that the bishop 
should divide his diocese into deaneries for the purpose 
of a more compact and efficient administration. The 
rural deans, therefore, are a kind of vigilance committee, 
and must report to the bishop at least once a year. One 
of their duties is to convoke the pastoral conferences 
and to preside thereat. They must have a seal of their 
own, and they enjoy precedence over all the pastors (also 
the cathedral pastor) and priests of the diocese. 

To the hierarchic organization belong the pastors, who 
are the proper theme of this book. If we say that they 
belong to the hierarchic organization, we mean the 
hierarchy of jurisdiction introduced by ecclesiastical law, 
because as priests or partakers of the power of order they 

17 Feb. 22, 1919 (A. Ap. S., XI, 75 f.) ; for Canada, S. C. 
Consist., May 8, 1919 ( Eccl . Rev., Vol. 61, p. 165). 

18 See can. 161-182. 


PASTORS 


35 

doubtless form part of the hierarchy established by divine 
command. 

We shall, however, not interrupt the order of the Code. 
On the contrary, following the same, we shall merely 
stress what pertains to the rights, duties, or functions of 
pastors and all others who have charge of souls, including 
assistants or curates. 


PASTORS 

(Can. 451-470) 

Since, as stated above, there are canonical parishes 
in our country, the former usage of calling the pastors 
“rectors” should gradually be allowed to go into desue¬ 
tude; “rectors” now are a somewhat different class of 
priests. 


Definition 

A parish priest is a priest, or a moral ecclesiastical 
person, to whom is entrusted a parish with the care of 
souls, to be administered under the authority of the Or¬ 
dinary of the diocese. 

The following are the equals of parish priests as to 
parochial rights and obligations, and are known in law 
by the name of parish priests: 

1. Priests who govern quasi-parishes, i.e., congrega¬ 
tions of the faithful existing in Apostolic vicariates and 
prefectures (can. 216, § 3) ; 

2. Parochial vicars endowed with full parochial 
powers. 

A moral person is a corporation. It is the habitual 
pastor, as distinct from an actual pastor. Thus a monas¬ 
tery, or, rather, its prelate, is the habitual pastor, but 


36 


THE CLERGY 


the priest appointed to administer the parish is the ac¬ 
tual pastor. Parishes can be incorporated with mon¬ 
asteries pleno hire only by an Apostolic indult. 

In titulum here implies possession, not ownership of 
a parish. It is guaranteed by law as long as the holder 
does not disobey the laws of the Church or go out of 
office by resignation, removal, transfer, etc. If the title 
is not real, but merely presumptive, it is called putativus 
or coloratns. Thus a pastor may not be aware of the 
decision of the bishop who has taken away the parish, 
and continue to function bona fide as pastor. But when 
there is no foundation for a title, the pastor is simply 
an intruder. For instance, if a new pastor has been 
appointed, and the appointment duly intimated or pro¬ 
mulgated, but the old pastor does not “move,” be becomes 
an intruder, and the parish is vacant, de iure as well as 
de facto. 

The power of pastors is an ordinary power, given them 
by virtue of their office, and the bishop cannot arbitrarily 
diminish, take away, or limit it to such an extent that it 
would become an empty title. But it is also true, as the 
Code says, that the power of pastors is dependent upon, 
and subject to, that of the bishop, and therefore they 
must exercise their office under the authority of the Or - 
dinarius loci. 


The Qualifications of Pastors 

The qualifications of a parish priest are as follows: 
He must be a man of good morals, filled with zeal for 
souls, endowed with knowledge, prudence, and all the 
other virtues required by either common or particular 
law for the effective government of a parish. 

It is not essential to the definition of a pastor that he 


EXAMINATION AND CONCURSUS 


37 


be irremovable; he may be removable and yet be a pas¬ 
tor in the full sense of the word. Hence what the 
Councils of Baltimore 19 have enacted on this head may 
still be followed. 

The Appointment of Pastors 

The right of appointing and investing parish priests 
belongs to the Ordinary of the diocese. The adminis¬ 
trator or vicar-capitular—and the same applies to an 
administrator appointed for a limited term—can appoint 
only a parochial vicar, but may appoint pastors perma¬ 
nently in case the see has been vacant at least one year. 
The vicar-general has no power to appoint pastors, except 
by special mandate of the bishop and in case the epis¬ 
copal see is impedita, for example, if the bishop is exiled 
or cannot communicate with his diocesans (can. 429, 

§ 1). 

For parishes entrusted to religious institutes the su¬ 
perior who exercises that right under the constitution 
shall present a priest of his community to the local Or¬ 
dinary for investiture. 

Examination and Concursus 

The Ordinary must subject the candidate to an exam¬ 
ination in the presence of the synodal examiners. If 
a pastor has already passed such an examination for the 
first parish he held, no new examination is required. 
On the other hand, the examinations before ordination 
or those for the junior clergy are no substitutes for the 
pastoral examination, unless indeed the examination for 
ordination comprises all practical questions concerning 

19 Acta et Decreta Cone. Balt. II, n. 125; Balt. Ill, n. 32. 



38 


THE CLERGY 


the administration of parishes. 20 The examination to 
be made before a priest is promoted to a parish, never 
takes the place of a concursus. This concursns —as out¬ 
lined in the constitution of Benedict XIV “Cum illud,” 
Dec. 14, 1742, and adopted by the Third Plenary Coun¬ 
cil of Baltimore (nn. 36, 47 ff.)—must be undergone 
by all who aspire to an irremovable parish. Those only 
may present themselves for it who have exercised the 
sacred ministry in the diocese for at least ten years, 
three of which they must have spent as simple rectors 
or at least given proof of their ability to govern a parish 
spiritually and temporally {Cone. Balt. Ill, n. 43). The 
bishop may appoint one to an irremovable parish for the 
first time without a concursus, says the Third Plenary 
Council (n. 57). This undoubtedly means that now, 
(since 1884), after a parish has been newly declared 
an irremovable one, the first irremovable pastor may be 
appointed freely by the bishop without a concursus. It 
is neither against the Code nor against the Council of 
Baltimore if we say that even now the bishop may, with¬ 
out a concursus, appoint a pastor for a parish that has 
been newly erected or newly declared irremovable. On 
the other hand, it cannot be held that a new bishop may 
for the first time, appoint irremovable pastors without 
a concursus. 

In order to safeguard unity of government, the Code 
provides that one can hold only one parish in titulum, and 
that in each parish only one is the parish priest, namely, 
he who has the actual care of souls. This enactment, 
of course, does not exclude a union of parishes aeque 
principaliter, nor does it prevent the existence of sub¬ 
sidiary parishes or chaplaincies. Thus, for instance, a 
parish may embrace several missions or stations, but 

20 Commissio Pont., Nov. 24, 1920 ( A . Ap. S., XI, 574). 


RIGHTS OF PASTORS 


39 


they are subordinated to one pastor, who exercises the 
parochial rights and is responsible for the care of souls 
and the parish books. 

By taking possession of the parish the appointee be¬ 
comes what he is called, i. e., pastor of the respective 
parish. A certain formality is prescribed, as the Code rules 
(can. 1443) ^at no one shall take possession on his own 
authority, because this would savor of ambition. If the 
bishop writes a letter to the effect that N. is appointed 
to the parish and will be there on a certain day, this is 
sufficient to “authorize” N. to take possession on the 
day appointed. The appointee holds the parish in 
titulum from the day of his appointment, but not before. 
This is to be noted especially with regard to assistance 
at marriages (can. 1095). Before taking possession, 
however, the new pastor must make profession of faith 
in the presence of the Ordinary or the latter’s delegate 
(can. 1406). In such cases it is proper to delegate the 
rural dean if the parish is located in the country. 

Rights of Pastors 

The following are the strictly parochial rights reserved 
to pastors, unless otherwise provided for by either general 
or particular law. The general law (i. e., the Code) es¬ 
tablishes the relation between pastor and curate, or as¬ 
sistant, with reference to those spiritual rights. These 
rights are limited only in case of exemption. Particular 
laws, such as diocesan statutes, may also affect the exer¬ 
cise of these rights. Otherwise no limitation or curtail¬ 
ment of these rights should be allowed. 

The strictly parochial rights of a pastor are: 

(1) To administer solemn Baptism; 

(2) To carry the Holy Eucharist publicly to the sick 
in his own parish; 


40 


THE CLERGY 


(3) To take the Holy Eucharist either publicly or 
privately to the sick as viaticum, and to anoint them 
when in danger of death (with due regard to can. 397, 
n. 3; 514, 848, § 2; 938, § 2) ; 

(4) To announce sacred ordinations and the banns of 
matrimony, to assist at marriages and to impart the nup¬ 
tial blessing; 

(5) To hold funeral services according to can. 1216; 

(6) To bless the homes of the faithful on Holy Sat¬ 
urday or other customary days, according to the liturgical 
books; 

(7) To bless the baptismal font on Holy Saturday, to 
hold processions outside the church, to give the solemn 
blessing outside the church, unless, in a capitular church, 
the chapter performs these functions. 

The temporal or material rights of a pastor are these: 
He is entitled to the income established by approved 
custom and legitimate taxation (can. 1507). If he takes 
more, he is obliged to restitution. When parochial func¬ 
tions are performed by another than the parish priest, 
the latter is entitled to the fees, unless there is a sur¬ 
plus and it is evident that the donor intended that surplus 
for the priest who performed the function. 

Parish priests should never refuse to serve the poor 
free of charge. 

An exception to refunding the stole fees seems to be 
established in can. 1097, § 3, which enacts that pastors 
who assist at marriages without the permission required 
by law, are not allowed to keep the stole fees, but must 
hand them to the parties’ own pastor. Therefore, speak¬ 
ing positively, pastors, who would otherwise be entitled 
to assist at marriages, may assist licitly, provided the 
permission of the parochus proprius was given, and in 
that case may retain the stole fees. The exception is 


DUTIES OF PASTORS 


4i 


only apparent; for the pastor exercises a parochial 
right to which he would be entitled, if permission were 
granted, and, on the other hand, can. 1097, § 3, only 
obliges in case of illicit assistance. 

Duties of Pastors 

1. Since the term “pastor” implies care of souls, his 
principal duty is to provide for all the parishioners, unless 
some of them should be exempt from his charge. To 
this exemption reference shall be made when speaking of 
the relation of pastors to religious. 

2. The nature of a pastor’s duties requires his 
personal presence in his parish. Hence the pastor 
is obliged to reside in his parish. A vacation of two 
months is granted by law, provided he has the permission 
of his Ordinary, who may shorten or prolong the vaca¬ 
tion. For any other absence (also vacation) lasting more 
than a week, three conditions are required: (a) a legit¬ 
imate cause, (b) the written permission of the Ordinary, 
and (c) the appointment of a substitute. In cases of 
sudden or unforeseen absence the Ordinary must be noti¬ 
fied as soon as possible of the reason for absence and 
the name of the substitute. Even during a shorter (less 
than a week’s) absence the pastor must provide for the 
wants of the faithful. However, this provision, as the 
text says, concerns the wants of the faithful, i e., those 
means of salvation to which they are strictly entitled, e. g., 
sick calls and the Sacraments which are necessary for sal¬ 
vation. Devotional Communion or assistance at daily 
Mass are not such wants. Not even a pastor is obliged in 
conscience to say Mass every day. Besides, if the 
pastor asks a neighboring priest to attend to his flock 
during his absence, he has complied with his duty. 


42 


THE CLERGY 


Otherwise he could not absent himself for even one day. 
No one can put such a rigid interpretation upon the 
text, which purposely adds: “if peculiar circumstances 
require it” (can. 465, § 6). 

3. A grave duty incumbent on pastors is the applica¬ 
tion of Holy Mass on Sundays and holy days of ob¬ 
ligation, also on days of (now) suppressed feasts, pro 
populo. The Code has not introduced any change with 
regard to this. 21 Note, however, that the application 
obliges only pastors of canonically established parishes. 22 
These are bound, ex iustiticu, to apply the Mass pro 
populo on said days. Consequently they are not allowed 
to accept any stipend on those days, even though 
they binate (can. 824). But they are allowed to say 
a Mass for any purpose for which they would be obliged 
to say Mass, always provided there is no stipend in¬ 
volved. Thus the pastor may say the second Mass for 
a fellow priest who was a member of the purgatorial 
society, or for members of a sodality, or a Mass promised 
by a vow, or to which he is obliged by a statute or pre¬ 
cept of a confraternity. It may not be amiss to state 
that the Code here as elsewhere (can. 824) does not say 
which Mass, the first or the second, in case of bination, 
must be applied pro populo. But it does require that the 
Mass for the people be said in the parish church, unless 
circumstances (for instance, absence of the pastor or 
necessity of saying the Mass in a hospital or religious 
institute) compel him to celebrate elsewhere. 

4. Particular duties of the pastor are: to hold divine 
services; to administer the Sacraments to the faithful 
as often as they legitimately ask for them; to know 
his sheep and prudently to correct the erring; to bestow 

21 Commissio Pont., Feb. 17, 1918 ( A . Ap. S., X, 170). 

22 S. C. Consist., Aug. 1, 1919 (A. Ap. S., XI, 346). 


ASSISTANT PRIESTS 


43 


his paternal care upon the poor and wretched, and to 
employ the greatest diligence in instructing the children 
in their religion. These duties include the care of the 
sick, charitable works, and watchfulness against dangers 
to faith or morals in his parish, especially in the school. 
“The pastor or any other priest assisting the sick has 
the faculty to grant, and should not omit to impart, the 
Apostolic blessing with the plenary indulgence in articulo 
mortis, according to the formula contained in the ap¬ 
proved liturgical books” (can. 468, § 2). 

5. Parish hooks are a very important factor in the 
administration of a parish. These books are: baptismal, 
confirmation, marriage and death records and the Status 
animarum . The Code does not strictly prescribe that 
the pastor keep these books himself; but it holds him 
responsible for their correctness and preservation. It 
also enjoins on him to have his own parish seal 
and to make adequate provision for the safekeeping of 
these books and all other documents referring to parish 
or pastoral matters. 

ASSISTANT PRIESTS AND RECTORS 

(Can. 471-486) 

The Code distinguishes five kinds of assistants, as 
we call them in this country: vicars of incorporated 
churches, oeconomi or administrators of vacant parishes, 
temporary substitutes, coadjutors of disabled pastors, and 
cooperatores or assistants proper, who in some countries 
are called curates. 

I. When a religious community has parishes incor¬ 
porated pleno iure by virtue of a papal rescript, a vicar 
must be appointed to take actual charge of the parish. 


44 


THE CLERGY 


The appointment is made by the. religious according to 
the constitutions of the respective institute, but the vicar 
must be presented to the local Ordinary, who invests 
him if he finds him fit. The local Ordinary may remove 
such a vicar and is not obliged to state the reasons for 
the removal. The vicar may also be removed by the re¬ 
ligious superior, who, in turn, is not bound to give the 
reasons for the removal to the Ordinary (can. 454, § 5). 

Here can. 609, as compared with can. 415, may find 
a place; both bear on the relation of pastor and chapter. 
If the church attached to the residence of a religious 
community is at the same time a parish church, can. 415 
should, with due proportion, be observed. This canon 
provides: 

1. The pastor has the following obligations: (a) to 
apply the Mass for the people, and to preach and teach 
catechism at the times prescribed; (b) to keep the paro¬ 
chial books and take from them the attestations required; 
(c) to perform the funeral services; (d) to perform 
such other functions as are usually held in parish 
churches, provided, however, that the choir services do 
not interfere, or that the chapter does not perform the 
same; (e) to collect alms for the good of the parish¬ 
ioners, to accept such as are either directly or indirectly 
offered, and to administer and distribute them accord¬ 
ing to the intention of the donors. 

2. The chapter on its part is bound: (a) to take care 
of the Blessed Sacrament, leaving one key with the par¬ 
ish priest; (b) to see to it that the liturgical rules are 
observed by the parish priest in the performance of all 
functions in the chapter church; (c) to take care of the 
church and administer its possessions and legacies. 

The parish priest shall not interfere with the func¬ 
tions of the chapter, nor the chapter with the parochial 


ASSISTANT PRIESTS 


45 


functions. If a conflict arises, the Ordinary should set¬ 
tle it. He shall also see to it that catechetical instruc¬ 
tions and gospel explanations are given at an hour most 
convenient for the faithful. 

II. An oeconomus or administrator must be appointed 
to a vacant parish as soon as possible. He is pastor ad 
interim with all the rights and duties of a pastor, but 
should not undertake anything that might cause detri¬ 
ment or prejudice to the pastor or the parish. 

III. A temporary substitute is appointed when a pastor 
is absent on a vacation or in case he has been deprived 
of his parish but has appealed, pending approval. The 
substitute has charge of whatever pertains to the care 
of souls, unless the Ordinary of the diocese or the pas¬ 
tor has made reservations. 

IV. Coadjutors are given to disabled pastors by the 
local Ordinary. The rights of a coadjutor depend on the 
physical and mental condition of the pastor and on the 
wording of the letter of appointment. However, the co¬ 
adjutor is never obliged to apply the Mass pro populo. 

V. Assistants or curates are appointed if the pastor, on 
account of the large number of parishioners, or for some 
other reason, is unable in the judgment of the Ordi¬ 
nary, to take proper care of the parish. Assistants 
are entitled to a sufficient salary, which is fixed by di¬ 
ocesan statute. The Code does not forbid the sharing 
or dividing up of the stole fees, or letting the as¬ 
sistants have a portion of the Christmas or Easter col¬ 
lection. In fact, we believe it would do away with cer¬ 
tain abuses if the stole fees were all massed together 
and equally divided among the assistants, the pastor re¬ 
ceiving, let us say, two shares. Assistants may be ap¬ 
pointed either for the whole parish, or for a particular 
part thereof. 


46 


THE CLERGY 


The right to nominate assistants from among the sec¬ 
ular clergy belongs not to the pastor, but to the Ordinary 
of the diocese, but he should consult with the pastor be¬ 
fore making an appointment. 

Assistants belonging to a religious order must be pre¬ 
sented by the competent superior to the Ordinary for 
his approval. 

An assistant pastor is obliged to reside in the parish, 
according to the diocesan statutes, or praiseworthy cus¬ 
tom, or episcopal injunction. The Ordinary should see 
to it, according to can. 130, that the assistants dwell in 
the parish house. But time for vacation is not excluded, 
much less forbidden, by the Code. 

Their rights and obligations must be determined from 
the diocesan statutes, the letters of appointment, and 
the instructions of the pastor; however, unless the con¬ 
trary is expressly stated, they take the place of the 
pastor in virtue of their office and must assist him in 
the entire ministry, barring only the application of the 
Mass for the people. 

The assistant is subject to the pastor, who should 
paternally instruct and advise him in the care of souls, 
watch over him, and report to the Ordinary about him 
at least once a year. 

The phrase, “by virtue of their office,” means that the 
assistant can do what the pastor is empowered to do, 
unless the latter expressly excepts something. This rule 
of can. 1096, § 1, is logically applied to assistance at mar¬ 
riages. 

The relation between pastor and assistant is well de¬ 
scribed by the Second Provincial Council of Quebec (a. d. 
1854) : “The assistants shall diligently endeavor to act 
in harmony with the pastor, for too great discrepancy 
in the practice of the sacred ministry might result in 


ASSISTANT PRIESTS 


47 


destruction rather than edification. Besides, they shall 
most carefully avoid in word or deed whatever might be¬ 
little the pastor, and in all things conduct themselves 
modestly and diligently promote the welfare of the peo¬ 
ple.” 

Here is an authentic decision concerning temporary 
substitutes: A substitute appointed by the pastor during 
his vacation may validly and licitly assist at all marriages 
that occur during that time, provided the local Or¬ 
dinary has approved the substitute and the pastor has 
not made any restrictions. A substitute called in by a 
pastor on account of sudden absence may assist validly 
and licitly at marriages, until the Ordinary, after having 
been notified as to the person of the substitute, shall pro¬ 
vide otherwise. A religious acting as substitute for a 
pastor during the latter’s vacation may assist at marriages 
validly and licitly, if he is approved by the local Ordinary, 
even though he has not yet been approved by his own 
superior. 23 This interpretation is in conformity with 
can. 465, §§ 4 and 5. What kind of approval is required? 
Can. 465, § 4, only says: “ [substitutum ] ab codem Or- 
dinario probandum” Hence a tacit approval would be 
sufficient, viz., one which is not contradicted when con¬ 
tradiction is possible; in other words, if the Ordinary is 
notified of the person of the substitute, and raises no 
objection against him, his approval may be presumed, 
provided, of course, the substitute has the diocesan fac¬ 
ulties. 

The next case is that of a sudden call. The pastor is 
called to the bedside of his dying mother; he leaves Fr. 
John, a religious who was sent there by his superior, in 
his place, but forgets to notify the local Ordinary. Fr. 
John knows that the bishop has told his superior that 

23 Commissio Pont., July 14, 1922 (A . Ap. S., XIV, 5 2 7 !•)• 


48 


RELIGIOUS 


whosoever would be sent by him would have the faculties, 
and therefore may assume tacit approval, sufficient for 
valid and licit assistance at marriages. 

Concerning rectors, i. e., priests who have charge of a 
church which is neither a parish nor a capitular church, 
nor entrusted to a religious community, they resemble 
rectors of chaplaincies or subsidiary churches established 
within parishes. The pastor can take the Blessed Sacra¬ 
ment from these churches and administer it to the sick. 
But rectors should be careful not to interfere with 
parochial rights and give preference to parish ser¬ 
vices. 


PART II 
RELIGIOUS 

THE RELIGIOUS STATE 
(Can. 487-681) 

“The religious state, that is, the firmly established man¬ 
ner of living in community, by which the faithful under¬ 
take to observe, not only the ordinary precepts, but also 
the evangelical counsels, by means of the vows of obe¬ 
dience, chastity, and poverty, must be held in honor by 
all,” says can. 487. 

Besides the religious proper, there are societies of men 
and women whose members imitate the religious life by 
living in a community under the government of superiors, 
according to approved constitutions, but without being 
bound by the usual vows. 

Regular institutes are those whose members, or at least 
the majority of whose members, pronounce solemn vows; 
all these members are called religious, pure and simple, 


EXEMPTION 


49 


even though some of them may be exempt, as among 
the Passionists and Redemptorists. 


Exemption 

Regulars, both men and women, including novices (ex¬ 
cept nuns not subject to regular superiors), together with 
their houses and churches, are exempt from the juris* 
diction of the local Ordinary, except in cases provided 
by can. 615. 

Can. 464, § 2, rules that the bishop may, for just and 
weighty reasons, withdraw from the care of the pastor 
religious communities and pious houses located within 
the territory of a parish, even though they are not ex¬ 
empt. This is episcopal, not papal, exemption, and may 
be granted only by the bishop, not by the vicar-general 
or vicar-capitular; it may be recalled at any time and is 
subject to restrictions. The pastor must be notified when 
such exemption is made, otherwise he might be forced 
to demand the document of exemption from the respective 
superior; he would be entitled to ask for such papers, 
although he may not ask for the reasons of the ex¬ 
emption. 

Here the pastor’s rights with regard to non-exempt 
religious houses may be set forth. 

1. The right of conferring solemn baptism belongs 
strictly to the pastor in whose parish a religious house is 
located. Therefore children should, as a rule, be brought 
to the parish church if the parents have their domicile or 
quasi-domicile in the parish. If there is danger, the 
child may be privately baptized in the chapel of a re¬ 
ligious community (hospital or academy) ; if solemn bap¬ 
tism is desired, the consent of the pastor, to be expressly 
given in each individual case, is required (can. 776; can. 


50 


RELIGIOUS 


773). Religious may be sponsors only in cases of neces¬ 
sity (can. 766, n. 4). 

2. As to the Holy Eucharist: The pastor is entitled to 
bring the Viaticum to sick members of lay institutes, 
such as all Sisters are; in clerical congregations this 
right belongs to the religious superior. If outsiders— 
for instance, pupils, patients, servants—receive their 
Easter Communion in the chapel of a religious house, 
they should inform their pastor of the fact (can. 514; 
can. 859, § 3). 

At the Corpus Christi procession all male religious 
must be present except those who are strictly cloistered 
or live 3000 paces from the city (can. 1291). 

3. Concerning the Sacrament of Penance, the Code 
(can. 519, 522), renewing former decrees, enacts that 
religious may be licitly and validly absolved in any church 
or semi-public oratory—the religious’ own oratory not 
excluded—provided the confessor enjoys the ordinary 
faculties, and that he or she may be absolved from cen¬ 
sures and sins reserved in his or her own institute, unless 
this reservation is ah homine or reserved by law to 
the religious superior, as is the one mentioned in can. 
2385 concerning apostates. The confessor must not in¬ 
quire into the reason for “the quieting of conscience.” 

4. The required publication of the ordination of re¬ 
ligious should not be made in the churches of their par¬ 
ish (can. 998). 

5. The Ordinary should never, without urgent neces¬ 
sity, grant permission to have marriages celebrated in 
churches or oratories of religious women (can. 1109, 
§ 2). 

6. Concerning the burial of religious, the Code vin¬ 
dicates the right to bury non-exempt religious to the 
pastor in whose parish the religious house is situated. 


EXEMPTION 


5i 


The same rule applies to the burial of guests, students, 
or patients who have lived and died in such houses (can. 
1221, 1222, 1230). 

7. Concerning preaching, can. 1334 provides that even 
exempt religious may be called upon to help in giving 
catechetical instructions to the people. “The religious 
superiors should always be ready to lend a helping hand, 
especially if their own Ordinary, or a pastor of their 
diocese, calls for assistance in attending to the needs of 
the people; and this help should be granted willingly, 
not only to the churches and public oratories subject to 
the religious, but also to others, as far as compatible with 
religious discipline. On the other hand, it is but meet 
that the local Ordinary and parish priests should employ 
religious, especially those living in the diocese, for the 
sacred ministry, and particularly for the administration 
of the Sacrament of Penance” (can. 608). 

It may not be amiss to add that pastors or curates who 
are confessors of religious, are strictly forbidden to med¬ 
dle in the internal or external government of the com¬ 
munity (can. 524, § 3). The chaplain, who is appointed 
by the local Ordinary, may say Mass and preach or give 
instructions, but should abstain from interference with 
the community, especially if the constitutions have been 
approved by Rome. However, we cannot suppress a re¬ 
mark prompted by experience and the reasonable wishes 
of a number of conscientious pastors. Religious, espe¬ 
cially of the female sex, at times obstinately insist on 
enforcing their constitutions, for instance, in avoiding 
help in the sacristy or insisting on having exposition or 
Benediction so many days or hours, thereby almost over¬ 
whelming the chaplain with work. Now, while we cer¬ 
tainly recommend faithful observance of the constitutions, 
it should never be forgotten that even solemnly approved 


5* 


THE LAITY 


constitutions are but human laws, and there may be cir¬ 
cumstances which demand a certain mitigation. Talking 
over the matter in a friendly spirit will be helpful for a 
mutual understanding. There is also a law which rules 
that Holy Communion should be distributed only at hours 
when Mass may be said, unless a reasonable cause ad¬ 
vises a deviation from this rule (can. 867, § 4). Would 
it not be reasonable, and also more charitable, if the 
pastor or assistant were not obliged to commence pas¬ 
toral work too early,—at least in winter and on days 
when he has to fast and work until noon? Again solemn 
or public exposition with the ostensorium, outside the 
feast of Corpus Christi and its octave, is allowed only 
for a just and grave reason and with the permission of 
the Ordinary (can. 1274), § 1). We ask, Is the wish 
of a few Sisters really such a reason? 

Pastors or other priests cannot absolve apostates from 
exempt religious institutes, because the excommunica¬ 
tion incurred by them is reserved to the major superior,— 
general, provincial, abbot, etc. (can. 2385). 

PART III 
THE LAITY 
(Can. 682-725) 

As the pastors have the duty to administer, so the 
laity have the right to receive, the Sacraments and other 
spiritual benefits offered by the Church. Laymen not 
only have the right, but should be advised to enroll in 
societies organized, or at least recommended, by the 
Church; on the other hand, they should be deterred from 
entering forbidden secret societies, especially those which 
plot against Church and State. 


LAY ASSOCIATIONS 


53 


Christian associations are to be encouraged, because 
they are designed either to promote a more perfect Christ¬ 
ian life, like the Tertiaries and Oblates, or to foster 
works of piety and charity, as many confraternities and 
the Society of St. Vincent de Paul. 

Reception into any society is effected according to the 
laws and statutes of the same. Unless a society has a 
special privilege, the local Ordinary is entitled to appoint 
a director or chaplain for it. Tertiaries have moderators 
of the religious Order with which they are affiliated. 
Religious cannot be Tertiaries, nor can anyone be a 
tertiary in two orders at the same time. They cannot 
be compelled to take part as a body in public processions, 
but confraternities are bound to be present. Confra¬ 
ternities which have their own churches may exercise 
non-parochial functions independently of the pastor, pro¬ 
vided the parochial ministry does not suffer any injury. 
In case of doubt whether or not the functions of a con¬ 
fraternity or pious organization interfere with the paro¬ 
chial ministry, the Ordinary shall decide and lay down 
practical rules for guidance. 

Precedence is, without prejudice to can. 106, as fol¬ 
lows: (i) Tertiaries; (2) Archconfraternities; (3) 
Confraternities; (4) Primary organizations for pious 
purposes; (5) Other organizations for pious purposes. 

In sacramental procession the Confraternity of the 
Blessed Sacrament precedes the Archconfraternities, but 
not the Tertiaries. 


BOOK III 


ADMINISTRATIVE LAW 

The “things” (res) comprised in the third book of 
the Code, form the object of ecclesiastical administra¬ 
tion, either in the purely spiritual or in the mixed do¬ 
main. The Sacraments constitute the most important 
part, not only in the six divisions of the Code, but for 
the pastor in particular, though the other five are by 
no means negligible. 


PART I 

THE SACRAMENTS 

i. Administration and Reception of the Sacraments in 
General .—As the Sacraments of the New Law, instituted 
by Christ, are our chief means of sanctification and sal¬ 
vation, the greatest care must be taken that they are 
properly administered and worthily received. 

The law, therefore, forbids the administration of the 
Sacraments to heretics and schismatics, even though they 
may be in good faith and ask for them. They must first 
renounce their errors and become reconciled to the 
Church. Before the age of fourteen, heretics and schis¬ 
matics need not make a formal abjuration of heresy, 
but after the age mentioned, even merely material 
heretics must formally abjure heresy before they can be 
absolved. 

Three Sacraments, viz., Baptism, Confirmation, and 

54 


BAPTISM 


55 

Holy Orders, cannot be repeated on account of the in¬ 
delible mark which they imprint on the soul. 

The Books to be used in the administration of the 
Sacraments are the rituals approved by the Church. 
Each rite, Latin as well as Oriental, must be properly 
observed, without commingling or curtailment. 

Besides the usual fixed stole fees, the minister of a Sac¬ 
rament is not allowed to charge or demand anything for 
whatever motive or on whatever occasion, either di¬ 
rectly by exaction, or indirectly by insinuation, for the 
administration of the Sacrament. 

The Holy Oils to be used in the administration of the 
Sacraments of Baptism, Confirmation, Extreme Unction, 
and Holy Orders must be blessed by the bishop on Holy 
Thursday of each year, and old ones may not be used 
except in case of urgent necessity. Should the blessed 
oil be about to give out, unblessed olive oil may be added, 
even repeatedly, but in smaller quantities than the holy 
oil. Each pastor must ask his Ordinary for the holy 
oils and keep them in a safe and becoming place in 
church under lock and key. He may not keep them in 
his house except in case of necessity, or for some plaus¬ 
ible reason, and only with the express consent of the 
Ordinary. 


TITLE I 

BAPTISM 

(Can. 737-779) 

I. Nature of Baptism 

The Church has ever taught, in accordance with Holy 
Writ (John iii, 5), that Baptism is absolutely necessary 


56 


THE SACRAMENTS 


for salvation. This necessity theologians call necessitas 
medii. “Baptism,” says the Code, “is called the gate 
to, and the foundation of, the other Sacraments, because 
without it no other Sacrament can be validly received.” 

If Baptism is administered with all the rites and cere¬ 
monies prescribed in the liturgy, it is called solemn, to 
distinguish it from private Baptism, which is adminis¬ 
tered without these rites and ceremonies. The essential 
matter (natural water) and form (“I baptize thee in 
the name of the Father, and of the Son, and of the Holy 
Ghost”), must, however, be employed in both. 

2. The Minister 

The minister is either ordinary or extraordinary. 
The ordinary minister of Baptism is any priest, but more 
particularly the pastor {par o chits proprius) or a priest 
commissioned by the pastor or local Ordinary. For the 
conferring of Baptism is reckoned among the strictly 
parochial rights (can. 462). Percgrini, too, should be 
solemnly baptized by their pastor in his own parish 
church, if it can be easily and conveniently done. But 
in a district not his own, neither a pastor nor any other 
priest may solemnly baptize even his own subjects, un¬ 
less he (the pastor or other priest) has obtained 
permission from the local pastor. The reason is based on 
the fact that local jurisdiction is limited. In places where 
parishes or quasi-parishes are not yet established, special 
statutes and prevailing customs must be consulted, to 
make sure which priest, besides the Ordinary, is entitled 
to baptize either in the whole territory or in a particular 
district thereof. 

What about national or linguistically distinguished 
parishesf If the children belong to parents who are 


THE MINISTER OF BAPTISM 


57 


members of, say, a German or an Irish parish, there is 
no doubt as to the right of the pastor of that parish to 
baptize them. But doubtful cases may arise, such as this: 
A couple moves into a district, and before they have 
decided what parish to join, a baby is born to them. 
The Italian pastor is asked to baptize the child, because 
the mother is an Italian and would rather belong to the 
Italian congregation, whereas the father, though also of 
Italian descent, cares for no parish at all. In that case, 
we believe the Italian pastor would be entitled to baptize 
the child and keep the fee. The pastor of the English- 
speaking congregation could not claim the mother, nor 
could he insist upon territorial rights, because we are 
supposing that the Italian parish lies within the limits 
of the English-speaking congregation. But suppose an 
Italian mother comes to the pastor of a German- speak¬ 
ing congregation, which is within the boundaries of an 
English-speaking congregation, and begs the German pas¬ 
tor to baptize her child, either because he speaks Italian 
or is personally known to the family. Is the German 
pastor bound to refuse her request? We hardly think 
so, because, by reason of the territory or parochial dis¬ 
trict, he may claim as much right as the English pastor, 
and as far as pastoral rights go, he is as much entitled 
to perform the ceremony as the English pastor. How¬ 
ever, if an Italian church is near, the English as well as 
the German pastor should tell the woman to go to the 
Italian pastor. Or a convert has been instructed by the 
pastor of a German congregation. He is an American 
of other than German ancestry, while his wife belongs 
to the German nationality. Or perhaps he is not yet 
married. In both cases we believe that, in justice, the 
pastor who instructed the convert is entitled to baptize 
him, because the pastor of the English-speaking congre- 


58 


THE SACRAMENTS 


gation cannot claim anyone as his subject before Bap¬ 
tism. This we say conditionally, i. e., provided there are 
no diocesan regulations or lawful customs to the con¬ 
trary. 

The extraordinary minister of solemn baptism is the 
deacon, but he should not use his power without the per¬ 
mission of the local Ordinary or pastor, to be granted 
for a just reason; in case of necessity this permission 
may be lawfully presumed. 

In danger of death private baptism may be adminis¬ 
tered by anyone, provided he or she uses the proper 
matter and form and has the right intention. Wherever 
possible, two witnesses, or at least one, should be called 
to testify to the act. 

If a priest is present, he should be preferred to a 
deacon; a deacon to a subdeacon; a cleric to a layman ; 
a man to a woman (unless decency would demand prefer¬ 
ence for the woman or unless the woman knew the form 
and manner of baptizing better than the man). 

Father or mother are not allowed to baptize their own 
child except there be danger of death and no one else 
is at hand who could baptize (qui baptizet), i. e., who is 
capable and willing to baptize. Incapable would be, e. g., 
a bigoted Baptist who does not believe in infant baptism 
and, moreover, flatly refuses to perform the ceremony. 

3. The Subject 

Certain physical, mental, and moral conditions must 
be observed for the valid and licit reception of Baptism. 

1. As to the physical conditions, it is required that 
the subject be a human being, alive, and in the wayfaring 
state. “Omnis et solus homo” is the phrase used by 
the Code. Since only human creatures are capable of 


THE SUBJECT OF BAPTISM 


59 


attaining to eternal salvation, only beings which are, or 
may be, styled human, according to the metaphysico- 
physiological concept of humanity, may be validly bap¬ 
tized. Monsters, or products of erroneous development, 
should always be baptized, at least conditionally. When 
there is doubt whether there are one or several persons, 
one must be baptized absolutely, the other conditionally. 
Another physical condition is that the haptizandus be a 
viator, i. e., in the wayfaring state, which means, capable 
of leading an existence for himself. Therefore, no one 
enclosed in the maternal womb can be baptized as long as 
there is reasonable hope that he may be properly brought 
forth. If an infant puts forth his head, he may be bap¬ 
tized on the head, and need not be rebaptized condi¬ 
tionally in case he survives. If he puts forth some other 
limb than the head, he may be conditionally baptized 
on this limb if there be danger; but in that case he 
must be rebaptized conditionally in case he survives. 

If a mother dies in pregnancy, the fetus, after being 
extracted by those who are obliged to perform that act, 
should be baptized—absolutely if certainly alive, con¬ 
ditionally if there are only doubtful signs of life. 

A fetus baptized in the mother’s womb must be re¬ 
baptized conditionally after birth. 

All abortive human fetuses, if certainly alive, should 
be baptized absolutely; if it is doubtful whether they are 
alive or dead, Baptism should be administered condi¬ 
tionally. 

2. Mental conditions, properly speaking, concern only 
adults. Infants, with regard to Baptism, are those who 
have not yet attained to the use of reason, whereas the 
term adulti (adults) comprises all who enjoy the use 
of reason. 

On the same level with infants are those who have 


6o 


THE SACRAMENTS 


been insane from infancy. Insane persons and maniacs, 
says the Code, should not be baptized unless they have 
been so afflicted from birth or before they attained to the 
use of reason, in which case they are to be baptized like 
infants. If they have lucid intervals, they may, if they 
wish, be baptized in the course of one of these intervals, 
i. e., while they enjoy the use of reason. They may also 
be baptized when in imminent danger of death, provided 
they have expressed a desire for Baptism before they 
became insane. 

3. Moral conditions. Whilst infants and those in a 
class with them need not have any intention, adults, to 
receive Baptism validly, must have a habitual, or at least 
an interpretative, intention. The Code says: “Adults 
who are physically and mentally normal, cannot be 
baptized except with their own knowledge and free 
will, and after having been duly instructed and exhorted 
to be sorry for their sins.” The extent of this instruc¬ 
tion is outlined by the Roman Ritual, which rules that 
they “be carefully instructed in the Christian faith and 
holy manners.” By Christian faith are to be under¬ 
stood the principal mysteries, those which must be 
believed necessitate medii, viz., the Blessed Trinity and 
the Incarnation. In addition to this, express belief in 
our Lord Jesus Christ is specifically mentioned in one 
decision of the Holy Office. The Apostles’ Creed, which 
is enjoined in an Instruction of the S. C. Prop. Fide, 
contains the principal mysteries of the faith. The Holy 
Office also urges instruction regarding the Holy Eucha¬ 
rist, unless the priest, for a prudent motive, deems it 
better to postpone this until after Baptism. Further¬ 
more the “Our Father,” the effects of Baptism, and the 
acts of faith, hope, and charity, are to be inculcated, and 
an act of contrition, or at least attrition, is required. 


THE SUBJECT OF BAPTISM 


61 


Concerning Christian morality, the aforesaid decision 
of the Holy Office insists on all the divine precepts which, 
according to the Instruction of the S. C. Prop, mentioned, 
are included in the Decalogue. The last-named Instruc¬ 
tion also demands the teaching of the precepts of the 
Church. 

Concerning adults who are in danger of death, the 
Code rules that if they cannot be carefully instructed in 
the principal mysteries of the faith, they may be baptized, 
provided they show in some manner their readiness to 
assent to the truths of the Catholic religion and promise 
to observe its precepts. 

With regard to the interpretative intention, note the 
following: If an adult can no longer ask for Baptism, 
but has, either previously or in his present state, in some 
way expressed his intention to receive Baptism, the Sac¬ 
rament should be administered conditionally. If he re¬ 
covers and there is doubt as to the validity of the Bap¬ 
tism conferred, he must be rebaptized conditionally, i. e., 
the minister must employ some such words as: “If you 
are capable, i. e., if you sincerely wish to be baptized, I 
baptize thee in the name/’ etc. 

There is, finally, a moral or jnridico-moral condition 
for the permissibility, not validity, of baptism, to be con¬ 
sidered with regard to the parents of the baptizandus, be¬ 
cause Catholic baptism demands Catholic education. 
Hence the following enactments: 

a) Children of infidels may be lawfully baptized 
against the will of their parents only when they are in 
danger of death. This danger must be such that there is 
little or no hope of their surviving to the age of discre¬ 
tion. Thus a nurse may baptize the dying child of He¬ 
brew parents, a missionary acting as a physician may 
baptize a pagan child in the same condition. Even when 


62 


THE SACRAMENTS 


there is no danger of death, children of infidels, provided 
their Catholic education is guaranteed, may be lawfully 
baptized in the following two cases: (i) If the par¬ 
ents or guardians, or at least one of them, consent; (2) 
If there are no parents, i. e., no father, mother, grand¬ 
father, grandmother, or guardians, or if they have for¬ 
feited the right to keep the child or are unable to exer¬ 
cise that right. 

b) As to children of non-Catholics the rule is that, if 
parents, relatives or friends offer for Baptism a child 
that belongs to heretics, schismatics, or apostate Catholics, 
the priest must gently but firmly decline to baptize it, 
unless he is morally certain that it will be educated in 
the Catholic religion, for instance, in a Catholic school 
or academy, or by Catholic relatives. 

c) Abandoned Infants ( expositi ) should be baptized 
conditionally, unless careful research makes it evident 
that the Sacrament has already been administered to them. 
One trustworthy witness, man or woman, especially the 
baptized subject himself, is sufficient to give evidence 
that Baptism has been conferred. A piece of paper ap¬ 
pended to the neck of the child is not sufficient proof if 
the writer is unknown; and when there is no other evi¬ 
dence, conditional baptism must be administered. 

4. Rites and Ceremonies 

1. The general rule is that Baptism should be con¬ 
ferred solemnly, viz., with all the rites and ceremonies 
prescribed by the liturgical books. This is a grievous 
obligation that binds everyone everywhere and always, 
except in danger of death. Not even the local Ordinary 
can permit private baptism to be conferred, except on 
non-Catholic adults who are baptized conditionally. The 


BAPTISMAL RITES 


63 


gravity of the law is evident from the precept that cere¬ 
monies omitted for any reason, except in the case of non- 
Catholic adults baptized conditionally, must be supplied 
in church as soon as possible. 

The danger of death excuses from the administration 
of solemn baptism. Two different cases may be distin¬ 
guished : 

a) If the Sacrament is conferred privately by one 
who is neither a priest nor a deacon, then no ceremonies 
or rites should be used, but only what strictly belongs to 
validity. In that case the person baptizing takes natural 
(not holy) water, pours it over the head of the one to 
be baptized,—whether once or three times does not mat¬ 
ter,—and says: “I baptize thee in the name of the 
Father, and of the Son, and of the Holy Ghost.” 

b) If the person who baptizes privately, for instance, 
at the * home of the baptizandus, is a priest or a deacon, 
he must administer the Sacrament with the prescribed 
ceremonies and rites, unless there is no time to apply all 
the ceremonies, or the parents stubbornly oppose them, 
or the holy oils, chrism or salt cannot be conveniently 
had. In these cases the priest or deacon would be per¬ 
mitted to omit the ceremonies. 

When Baptism is repeated sub conditione, the cere¬ 
monies must be supplied if they were previously omitted, 
except in the case of adult non-Catholics. The reasons 
for insisting on these ceremonies are that they date back 
to a remote age (some of them being testified to as exist¬ 
ing in the second century) and thus bear witness to a 
venerable tradition, and that, as Sacramentals, they are 
not merely empty “show,” but productive of grace and 
deeply significant. 

2. Matter and Form. —Valid matter is pure, natural 
water in the general meaning of the word. But in ad- 


6 4 


THE SACRAMENTS 


ministering solemn Baptism water especially blessed for 
the purpose must be used. This is the so-called baptismal 
water, which is blessed with special ceremonies on Holy 
Saturday and the Vigil of Pentecost. It should be kept 
in a neat and clean font, and the remainder poured into 
the sacrarium (waste-hole) when new water has been 
blessed. Of course, Baptism would be valid even if 
other water were used. Where there is danger that the 
baptismal font may be profaned, the baptismal water 
may be kept in any decent movable vessel. In one case 
the Holy Office allowed the use of common instead of 
baptismal water because the people to whom the mission¬ 
aries had been sent to baptize were addicted to the super¬ 
stitious belief that the baptismal water was the cause of 
their children’s death. 

Water for baptismal purposes must be blessed not only 
on Holy Saturday, but also on the Vigil of Pentecost, 
and the custom, no matter how ancient, of blessing water 
on Holy Saturday only, has been condemned as an 
abuse. 

If the holy oils do not arrive in time for the blessing 
on Holy Saturday, they may be privately and separately 
poured into the blessed water when they are received. 
If for some reason the holy oils cannot be blessed or 
obtained in any year, the holy oils blessed the previous 
year may be used for the blessing of the baptismal font; 
in that case the baptismal water thus blessed with the 
old oils should not be poured into the sacrarium when 
the new oils arrive. 

If the water in the baptismal font is so diminished 
that it appears to be insufficient for baptizing, ordinary 
water may be mixed with it again and again, but in stead¬ 
ily decreasing proportion. 


BAPTISMAL RITES 


65 


If the baptismal water becomes putrid (rotten), or 
runs out of the font, or disappears in some other way, the 
pastor shall cleanse the font and pour new water into 
it, which he shall bless with the rite prescribed in the 
liturgical books. The formula for the blessing of bap¬ 
tismal water—which is permitted only in case of necess¬ 
ity—will be found in the Roman Ritual. 

As to form, the well-known formula: “I baptize 
thee, . . must be pronounced at the moment the water 
is poured over the head of the baptizandas. The simul¬ 
taneity of the two acts must be at least moral, so that 
the act of applying the water is fixed by the words, no 
matter whether the application is made by infusion, im¬ 
mersion, or aspersion. 

3. The baptismal rite is thus determined by the Code: 
‘'Children must be baptized according to the rite of their 
parents, either Latin or Oriental. If one of the parents 
belongs to the Latin and the other to the Oriental rite, 
the rite of the father is decisive, unless a special law 
provides otherwise; but if only one of the parties is 
Catholic, the child must be baptized according to the rite 
of the Catholic party.” 

The pastors are admonished to see to it that Christian 
names are given to those whom they baptize. If they 
cannot obtain this, they shall in each case add to the 
name given by the parents or sponsors the name of some 
saint, and enter both names in the baptismal record. 24 

24 A handy book for verifying or finding distorted 
names is Rev. Z. L. Weidenhan’s “Baptismal Names,” 2nd ed., 

1919. 


66 


THE SACRAMENTS 


5. Sponsors 

1. Necessity and Number .—The ancient custom of hav¬ 
ing patrini at solemn baptism should be observed where- 
ever possible. If sponsors, as described in the Code, can¬ 
not be had, except with great difficulty, Baptism may be 
conferred without them; but if religious are present, they 
may and should be admitted as sponsors. 

2. Also at private Baptism a sponsor should be em¬ 
ployed if possible; if none was present, one should be 
engaged when the ceremonies are supplied; but in that 
case no spiritual relationship is contracted. 

When Baptism is repeated sub conditione, the same 
sponsor should be employed who was present the first 
time; but when this is not possible—and it would not 
be possible if he had not the qualities negatively de¬ 
scribed in can. 765—no sponsor is required for condi¬ 
tional Baptism. No spiritual relationship is contracted, 
unless the same qualified sponsor acts as such on both 
occasions. 

There should be only one sponsor, but he need not be 
of the same sex as the one to be baptized; at most two 
may be employed, viz., a man and a woman. This ruling 
is evidently inspired by the desire to diminish spiritual 
relationship, which seems to have been the delight of 
older canonists and glossators. 

3. The qualifications of sponsors are twofold, viz., 
such as are simply required that one may be sponsor (ut 
quis sit patrinus ) and such as condition licit sponsorship. 

(1) That one may be sponsor, 

a) He or she must be baptized, have attained the age 
of discretion, and have the intention of assuming the 
office of sponsor. 

b) He or she must belong to no heretical or schismati- 
cal sect, nor be excommunicated by either a condemnatory 
or declaratory sentence, nor be infamous by law, nor be 


SPONSORS 6 7 

excluded from legal acts, nor be a deposed or degraded 
cleric. 

c) He or she must be neither the father nor the mother 
nor the consort of the baptizandus; 

d) He or she must be appointed either by the one to 
be baptized or by the latter’s parents or guardians, or, 
if these be wanting, by the minister of the Sacrament. 

e) The sponsor must either personally or by proxy 
take upon himself the sponsorship by a physical act in¬ 
dicative of sponsorship according to custom. 

Evidently the absence of anyone of these qualifications 
would render sponsorship null and void, and conse¬ 
quently also render the impediment non-existing. 

(2) For licit sponsorship the following conditions are 
required: 

a) The sponsor must not be a cleric in higher orders, 
and must have reached the fourteenth year of age, unless 
the minister, for a just cause, sees fit to admit a younger 
person. A just cause may be the moral or intellectual 
qualities of the person admitted; local or rather climatic 
conditions (in Southern countries maturity sets in 
sooner), family traditions, or particular circumstances. 

b) The sponsor must not be excommunicated for a 
notorious crime; or excluded from legal acts; or rendered 
infamous by law, without a sentence having been issued 
to that effect; or interdicted; or a public criminal; or 
infamous in fact; 

c) The sponsor must know the rudiments of the faith, 
which requirement is as stringent for sponsors as for 
adults who desire to be baptized; 

d) The sponsor may not be either a novice or a pro¬ 
fessed member of any religious institute. However, in 
urgent cases, and with the express (not presumed) per¬ 
mission of at least the local superior, religious may be ad- 


68 


THE SACRAMENTS 


mitted to sponsorship. An urgent case would be if Bap¬ 
tism would otherwise have to be conferred without spon¬ 
sors. In hospitals and other asylums Sisters are some¬ 
times called upon to act as sponsors; they may do so 
with the permission of the superioress. 

e) The sponsor must not be a cleric in higher orders, 
for such may act as sponsors only with the express per¬ 
mission of the Ordinary. This includes subdeacons. An 
Ordinary, whether bishop or prelate regular, may act 
as sponsor without consulting anyone. 

When in doubt as to whether anyone may be legally 
or licitly admitted to sponsorship, the pastor should con¬ 
sult the Ordinary. 

4. The proper effect of sponsorship is spiritual rela¬ 
tionship between the minister and the baptizatus, and 
between the sponsor and his godchild. This is one of 
the five minor diriment impediments to marriage, from 
which Ordinaries who have received the new faculties 
may dispense. 

A duty arising from sponsorship is that godparents 
must regard their spiritual children as their perpetual 
charges and instruct them carefully in the obligations 
of the Christian life, in order that they may prove them¬ 
selves to be what they solemnly promised to be by their 
baptismal vows. This obligation exists even though the 
sponsors do not feel bound by it, but, as a rule, binds 
only when the parents neglect their duty. 

6. Time and Place 

1. The Code commands that infants be baptized as 
soon as possible. Pastors and preachers should fre¬ 
quently admonish the faithful of this obligation. In 
cases of urgent necessity it is better to administer 


TIME AND PLACE OF BAPTISM 69 


private baptism than to wait too long; because the 
ceremonies may be supplied afterwards and private 
Baptism can be conferred at any time and in any place. 
The term “quamprimum” (as soon as possible) is as¬ 
sumed to signify three, or at most, eight days after the 
birth of the child. An urgent necessity would exist, e. g. 
(a) if the distance from church were great, say more than 
three leagues; or (b) if the parents stubbornly objected 
to having the child brought to church. In these and 
similar cases private baptism may be administered, but 
the ceremonies and rites must be supplied as soon as the 
parents give their consent or the child can be brought to 
church. When a child is so feeble that there is positive 
danger of death, the midwife may baptize him. 

When Baptism, private or solemn, is administered at 
home, the faithful should be instructed that it is valid 
and not a mere ceremony. 

Solemn Baptism may be administered at any time, 
but if it can be done conveniently, adults should be 
baptized on the vigils of Easter and Pentecost, accord¬ 
ing to the ancient liturgies, especially in metropolitan 
and cathedral churches. 

2. The proper place for administering solemn baptism 
is the baptistry of a church or public oratory. The 
sacristy is not the proper place, unless there be a reason¬ 
able cause for using it. This cause must be submitted 
to the Ordinary. A valid reason would be repair work 
going on in church, and, we believe, coldness of the 
church on a winter day when the whole edifice cannot 
be heated on account of a baptism occurring on a week¬ 
day. 

The Code revokes and reprobates every statute, custom 
or privilege which would prevent the erection of a bap¬ 
tismal font in any parish church, and commands that 


7o 


THE SACRAMENTS 


every parish church should have its own baptismal font. 
This, of course, implies that the blessing of the baptismal 
water on the vigils of Easter and Pentecost must be per¬ 
formed in each and every parish church according to the 
Roman Ritual. The pastor is not allowed to put off 
this ceremony to another day. 

The local Ordinary may, for the convenience of the 
faithful, permit or command that another baptismal font 
be placed in some other church or public oratory within 
the boundaries of a parish. But the Code grants this 
favor only to churches and public oratories, not to semi¬ 
public oratories, such as the chapels of brotherhoods and 
sisterhoods. Much less can pastors or chaplains grant 
such a favor. 

Solemn Baptism —apart from cases of necessity—may 
not be administered in private houses, except in the fol¬ 
lowing circumstances: 

a) If those to be baptized are the sons or grandsons 
of actual rulers, or of their prospective successors to the 
throne. When this privilege is desired, application must 
be made for it either directly to the Ordinary, or to the 
parish priest, both of whom are entitled to perform the 
rite. 

b) If the local Ordinary, after prudent and consci¬ 
entious deliberation, judges that there is a just and 
plausible cause for granting the permission in some ex¬ 
traordinary case. Such cases would be: if Catholics 
would demand to have their children baptized in the house 
of a Catholic consul, which may happen among for¬ 
eigners; if the distance from the church would be very 
considerable, say ten geographical miles, and so forth. 
But solemn Baptism may never—not even in case of 
necessity or danger of death—be administered in the 
houses of non-Catholics, 


BAPTISMAL RECORD AND PROOF 71 

Attention is called to the wording of the text, which 
demands serious deliberation and conscientious acting 
and limits the exception per modum actus to individual 
cases. Therefore such an enactment could not be made 
a diocesan statute or a habitual grant conceded by way 
of a faculty. 


7. Baptismal Record and Proof 

Pastors must enter in the baptismal record the names 
of the baptized, of the minister, of the parents and god¬ 
parents, and the place and date of Baptism. This record 
must be made carefully and without delay. 

In the case of an illegitimate child, the mother’s name 
must be set down if she is publicly known to be the 
mother, or if, of her own accord, she demands it in writ¬ 
ing or before two witnesses. The name of the father 
must be recorded only if he, of his own accord, demands 
it of the pastor, either in writing or in the presence of 
two witnesses, or if he is known to be the child’s father 
by an authentic public document. In all other cases the 
one baptized must be recorded as the offspring of an un¬ 
known father or unknown parents. 

If the Baptism was not administered by the pastor, nor 
in his presence, the minister shall notify the pastor as 
soon as possible. It is hardly necessary to call attention 
to the grave obligation of keeping accurate baptismal rec¬ 
ords, on which authentic testimonies depend. Benedict 
XIV enjoined Ordinaries to examine the baptismal rec¬ 
ords at each canonical visitation. 

Without delay (sine mora) means the same day Bap¬ 
tism was conferred, and sedulo signifies legible, neat, and 
clear writing. If no prejudice to a third person is in¬ 
volved, one absolutely trustworthy witness is sufficient 


72 


THE SACRAMENTS 


to prove that Baptism was conferred; the sworn state¬ 
ment of the baptized person is also admissible, if Baptism 
was conferred on him as an adult. 

TITLE II 

CONFIRMATION 

(Can. 780-S00) 

Concerning this Sacrament of the living, which im¬ 
prints an indelible mark on the soul of the receiver and 
is pre-eminently the Sacrament of the Holy Ghost, it may 
suffice to say the following: 

1. The remote matter is chrism, composed of balsam 
and olive oil, and the mode of confirming consists in lay¬ 
ing on hands, anointing the forehead with chrism, and 
pronouncing the words prescribed in the pontifical books 
approved by the Church. The form reads thus: “Signo 
te signo crucis, et con fir mo te chrismate salutis, in nomine 
Patris et Filii et Spiritus Sancti.” No instrument may 
be used in anointing. 

2. The ordinary minister is the bishop, but a priest may 
act as extraordinary minister, if he has received this 
power either by law or by a special papal indult. The 
bishop should take care that this Sacrament is admin¬ 
istered every five years. 

3. The subject of valid Confirmation is every validly 
baptized Christian who has not yet been confirmed'. In 
order to receive this Sacrament licitly and profitably, 
one should be in the state of sanctifying grace. 
Although Confirmation is not absolutely necessary 
for salvation, no one who has an opportunity may law¬ 
fully neglect to receive it. 

4. This Sacrament may be conferred at any time, but 


THE HOLY EUCHARIST 


73 

is most fittingly conferred in Whitsun-week. The proper 
place is the church. 

5. Each confvrmandus should have a sponsor, and one 
sponsor should not stand for more than one or two oon- 
firmandi, unless the minister deems it prudent to deviate 
from this rule. As to the requisites for sponsorship we 
refer to what was said under Baptism, they being almost 
the same. One of the consequences is spiritual relation¬ 
ship between the confirmed person and the sponsor, which, 
however, does not constitute a diriment impediment to 
marriage. 

6. Record and proof are required similar to those of 
Baptism. But the Code insists that if the farochus pro- 
prius of the person confirmed was not present at the 
Confirmation, he should be informed of the fact as soon 
as possible by the minister or by some other person. 

TITLE III 

THE HOLY EUCHARIST 

(Can. 801-896) 

Of this sublime mystery, in which Christ the Lord 
Himself is contained, offered and received, under the 
species of bread and wine, the Code treats under a two¬ 
fold aspect: in fieri and in facto esse, via., of the Holy 
Sacrifice of the Mass and of Holy Communion. 

CHAPTER I 

THE HOLY SACRIFICE OF THE MASS 

I. The celebrant of the Holy Sacrifice of the Mass is 
the priest, and the priest alone, “concelebration” being 


74 


THE SACRAMENTS 


permitted in the Latin Church only at the consecration 
of bishops and the ordination of priests. 

In order to be permitted to celebrate Mass, a priest 
who is a stranger to the church authorities, where he 
wishes to do so, must exhibit a celebret ( e> pastor bonus”) 
or other authentic paper which testifies that he is a duly 
ordained priest, free from ecclesiastical censures or pen¬ 
alties. The celebret is issued to secular priests by the 
local Ordinary, and to religious by their respective supe¬ 
rior. It should not be older than one year from date of 
issue. If a priest has no celebret, because he has either 
forgotten or lost it, but is known to the rector of the 
church in which he wishes to say Mass as a priest in 
good standing, he may be permitted to say Mass. Even 
if he is unknown to the rector, a priest may be permitted 
to say Mass once or twice, provided he is dressed in ec¬ 
clesiastical garb, accepts nothing for saying Mass from 
the church in which he celebrates, and duly enters his 
name, office and diocese in the book kept for that pur¬ 
pose. Oriental priests wishing to say Mass in this 
country must show letters from the S. Congregation for 
the Oriental Church. 

2. All priests are obliged to say Mass several times a 
year; pastors are bound in proportion to their obligation 
towards their people, who must attend Mass on Sundays 
and holydays of obligation. 

3. If the Ordinary grants them the faculty of binating 
—which he may now do by virtue of his ordinary power 
—priests, and in particular, pastors may say two, but not 
more than two, Masses on each Sunday and holyday of 
obligation. The condition for granting this faculty is 
such a lack of priests that a considerable number of the 
faithful are without Mass on the days mentioned. What 
(< pars fidelium notabilis” means is not explained, but may 


THE MASS 


7 5 


reasonably be taken in a relative sense, viz., with refer¬ 
ence to the size of the parish. The condition of the 
roads, occupation and other circumstances should also be 
taken into account. In certain places bination is hardly 
necessary, whilst other parishes, especially in scattered 
country districts, need it. 

4. The moral disposition required for saying Mass is 
the state of grace, and the physical condition, fasting 
since midnight. Besides, the priest should not omit to 
prepare himself for the Holy Sacrifice by pious prayers 
and after celebration give thanks to God for this great 
grace. 

5. The fruits of the Mass may be applied to the liv¬ 
ing as well as to the dead, i. e., to the Poor Souls in Pur¬ 
gatory. There is no difficulty as to the application of them 
to members of the Catholic Church who died in com¬ 
munion with her. But there still seems to exist a rea¬ 
sonable doubt as to the application—and hence the ac¬ 
ceptance of a stipend—for such as did not belong to the 
Church at the time of their death. The teaching of the 
Code on this head may be stated as follows: 

a) The priest may apply Mass privately for excom¬ 
municated persons, provided no scandal is given; 

b) If the excommunicated person was or is tolcratus, 
the Mass may be applied for him, whether he be living 
or dead; 

c) If he is a vitandus, application can be made only 
for his conversion, according to can. 2262, which ex¬ 
cludes application for a dead excommunicatus vitandus, 
unless the excommunication has been removed by a post¬ 
mortem absolution from this penalty. Hence it may be 
concluded, with solid reason, 

d) That application may be made for non-Catholics, 
living or dead, but only privately and without giving 


76 


THE SACRAMENTS 


scandal, unless these were vitandi, declared as such by 
man or law; 

e) That a public, solemn or low, Mass can in no case 
be applied for non-Catholics. Hence such a Mass should 
never be announced publicly or the person for whom it 
is said be indicated to the congregation at large. But 
the priest is not obliged to tell the party who offers the 
stipend that he will apply the Mass for the Poor Souls 
in general. 1 

6. When saying Mass the priest shall wear the cassock 
{soutane) and the sacred vestments prescribed by the 
rubrics. The rubrical colors are five: white, red, purple, 
green, and black. On two Sundays of the year, “Gau- 
dete” and “Laetare” (the third Sunday of Advent and 
the fourth in Lent), a roseate color is allowed and rec¬ 
ommended. 

7. While all priests are obliged to employ a server, 
if possible, no priest who is not a bishop or prelate entitled 
to the use of pontificals is allowed to have an assis¬ 
tant priest in celebrating Mass, merely for the sake of 
honor or solemnity. However, the custom of employ¬ 
ing a presbyter assistens at a first Mass may be ad¬ 
mitted. 2 


Rites and Ceremonies of the Mass 

1. The Holy Sacrifice of the Mass must be offered in 
bread and wine, to which latter must be mixed a little 
water. 

The bread must be of pure wheat and freshly baked, 
so that no corruption need be feared. 

1 See Vol. IV, p. 143 ff.; Vol. VIII, pp. 185 f. of our Commen¬ 
tary. 

2 See Vol. IV, p. 150 of our Commentary, 


THE MASS 


77 


The wine must be natural wine made of the juice of 
the grape and uncorrupted. 

There is not much to be added to these rules. One 
remark may, however, be permitted. The wine must be 
fermented grape juice; as long as it has not fermented it 
is must (mustus) , not wine. The Hebrew language 
and custom bear out this statement. 

2. When celebrating Holy Mass, the priest must ac¬ 
curately and devoutly observe the rubrics of the respec¬ 
tive ritual and avoid the arbitrary addition of other cere¬ 
monies and prayers. All contrary customs are repro¬ 
bated by the Code. The liturgical language of the re¬ 
spective rite approved by the Church must be used sub 
grazi. This for us is the Latin language, which is sup¬ 
posed to be familiar to and properly pronounced by every 
priest. 


Time and Place for Celebrating Mass 

i. Holy Mass may be celebrated on all days, except 
those on which the respective rite forbids the priest to 
say it. 

In the Latin Church the general rubrics prescribe that 
no private Masses should be celebrated during the three 
days preceding Easter. This is to be understood as fol¬ 
lows: On Maundy Thursday, one solemn Mass should 
be celebrated in all the churches where the Blessed Sacra¬ 
ment is preserved and the liturgical functions are per¬ 
formed according to the Memoriale Rituuni of Benedict 
XIII. In churches where, because of a lack of clerics or 
servers, the sacred ceremonies cannot be duly carried out, 
the bishop may grant permission to the priest to say a 
low Mass for the convenience of the people. 

On Good Friday only one Missa Praesanctificatorum 


78 


THE SACRAMENTS 


may be celebrated, and priests \vho have two parishes to 
attend to, are not allowed to binate on that day. 

On Holy Saturday only one solemn Mass may be cele¬ 
brated in churches in which the liturgical functions of 
Holy Week are carried out. Private Masses are not 
easily allowed in any church on that day. In small or 
poor parishes a low Mass may be said if custom per¬ 
mits. But neither a local nor personal indult permits 
private Masses to be said in churches which are not 
parish churches. 

Mass should not be commenced earlier than one hour 
before dawn, nor later than one hour after noon. 
Neither the Code nor the new Formulary (III) of the 
Faculties contains any hint as to the power of Ordinaries 
to allow anticipation in the morning or celebration of 
Mass after the hour stated in the Code. But the bishop 
may, especially on a solemn occasion, permit Mass to be 
protracted until after two p. m., provided the Mass is 
started at one o’clock. On Christmas only the convent¬ 
ual or parochial Mass may be commenced at midnight, 
but no other Mass, unless by special Apostolic indult. 

In all religious or pious houses which possess an 
oratory with the faculty of habitually keeping the Holy 
Eucharist, one priest may say one or three Masses ac¬ 
cording to the rubrics on Christmas night. Those who 
assist thereat comply with the obligation of hearing Mass, 
and Holy Communion may be administered to all who 
desire to receive it. The bishop may, if he has obtained 
the faculties for which the Formulary was issued March 
17, 1922, grant permission for three Masses on Christmas 
night, as admitted by the rubrics, in the churches of 
religious not comprised by can. 821, § 3, provided the 
same priest says all three Masses. The churches not 
comprised in said can. 821 can only be churches proper, 


THE MASS 


79 


which, however, are not parish churches, or public or¬ 
atories, or any oratory where the Blessed Sacrament is 
not habitually kept. 

2. As to place, the Code rules that Mass must be cele¬ 
brated upon a consecrated altar and in a consecrated or 
blessed church or oratory. The privilege of a portable 
altar, which is granted either by law or by an indult of 
the Holy See, carries with it the faculty of celebrating 
Mass anywhere, provided the place be respectable and 
decent, and upon an altar stone; only celebration at sea 
is excluded. 

Episcopal oratories as well as those of Cardinals exist 
by law (can. 239; 349). The same law also removes 
the clause concerning celebration of Mass by bishops 
and Cardinals on shipboard. 

The local Ordinary, or, in the case of an exempt re¬ 
ligious house, the higher superior, may grant permission 
to say Mass outside a church or oratory, upon a conse¬ 
crated altar stone, provided the place is decent (no bed¬ 
room) and the permission is granted for a just and 
reasonable cause, for extraordinary cases only, and not 
habitually. Due notice should be taken of the clause, 
“in extraordinary cases only, and not habitually.” This 
means in plain English that no indiscriminate and un¬ 
warranted grants are to be made. The Ordinary could 
not, therefore, insert this permission in the diocesan 
faculties. But he may grant it, say, for a limited 
journey, or when a church is being repaired. By stretch¬ 
ing the text he may grant permission to say Mass in a 
schoolroom or in the basement of the school, or in a room 
of the parochial residence during winter. 3 On the 

3 The text of can. 822, § 4 reads: “nunquam vero in cubiculo” 
Now cubiculum has the meaning of room, particularly a room 
with a couch or a bed in it; but it also means a living room. 


8o 


THE SACRAMENTS 


other hand, it is evident that no permission is required for 
saying Mass in a properly constructed and blessed private 
chapel, be it on the same floor with the church, or in the 
basement of the church, or in the school building. 

It is strictly forbidden to say Mass in churches of 
heretics and schismatics, even though these churches may 
have been duly consecrated or blessed. The halls of 
Masonic temples or public school halls are not identical 
with such churches, and hence the Ordinary may, in 
particular cases and for good reasons, grant permission 
to say Mass there. 


Mass Stipends 
(Can. 824-344) 

The whole matter of Mass stipends may be reduced to 
the following headings: 

A. Nature and lawfulness. —A stipend may be defined 
as a contractual offering made to a priest and for his 
support, for saying and applying the Holy Sacrifice of 
the Mass according to a specified intention. A stipend, 
therefore, is not a price paid for a sacred or spiritual 
thing (simony), but part of a priest’s support. Since, 
however, it bears the character of a contract (do ut 
facias), it follows that the implied or explicit obligations 
which it entails must be complied with. These differ with 
the various kinds of Masses. 

B. Various kinds of Masses. —Stipends for Masses 
offered, as it were, offhand by the faithful, either out of 
pure devotion, or in the form of an obligation imposed 
upon his heirs by a testator, are called manual. 

Quasi-manual are stipends for foundation-masses 
which, for one reason or another., cannot be said in the 


MASS STIPENDS 


81 


church in which, or by the priest by whom, they should 
be said according to the charter, and are therefore, either 
by law or by an Apostolic indult, to be handed over to 
other priests. 

Stipends which are received from interest on legacies 
are called foundations. 

C. The effects of the contract involved in a Mass 
stipend are these: 

I. The amount of the offering or material considera¬ 
tion is to be fixed by the Ordinary of the diocese (if 
possible by a synodal decree), and priests are not allowed 
to demand more. 

Where there is no episcopal decree on the subject, 
diocesan custom must be observed. 

Religious, too, even though they are exempt, must 
abide by the episcopal decree or diocesan custom govern¬ 
ing Mass stipends. 

A priest is allowed to accept a larger stipend than the 
one determined by diocesan statute or by custom; and, 
unless the Ordinary has forbidden it, he may also accept 
less. The prohibition to receive a stipend below the 
customary sum must be made antecedently, and it would 
not be just to punish a priest for doing so, if no prohibi¬ 
tion had been promulgated. 

The number of Masses to be said and applied must 
correspond with the number of stipends given and ac¬ 
cepted, even though these be small. If a priest, for 
instance, receives ten Mass intentions, but only five dol¬ 
lars, he is bound to say ten Masses, provided, of course, 
he has accepted the stipends. But it could not be said 
that he accepted the obligation if he received the five 
dollars without being aware of the inadequacy of the 
amount, or if the donor had deceived him or given him 
a counterfeit note. A contract is entered into between 


82 


THE SACRAMENTS 


the one who offers the stipend and the priest who says 
the Mass. This contract is of the nature of a tacit do ut 
facias. Now any contract that is not knowingly and 
willingly agreed to by both parties must be regarded as 
invalid, and a priest is not supposed to acquiesce in 
fraud or deceit. But if he accepts five dollars with the 
promise to say ten Masses, he must abide by his promise, 
even though the amount is not the customary or synodal 
stipend. 

Note that, “though the alms given for Masses have 
perished without the fault of the one wfho is obliged to 
say the Masses, the obligation does not cease.” This is 
merely a consequence of what was said in the preceding 
canon concerning a stipend as a contract which obliges as 
soon as it is entered upon. Hence if a priest has received 
money for Masses and loses it, the loss is his ( res peril 
domino ) and he remains bound to say the Masses. 

If one offers a sum of money for the application of 
Masses, without determining the number, this is reckoned 
according to the amount usually given in the place where 
the donor lives, unless it may be lawfully presumed that 
he had a different intention. 

The Code reinforces the ancient law that “every 
semblance of bartering or trafficking with Mass stipends 
must be strictly avoided.” 

II. The contractual side concerns the intention of the 
donor, the conditions, whether implied or explicit, of 
the contract, and the personal obligation to comply with 
these conditions. 

i. Intention and application .—Since a contract is one 
already entered upon, it is forbidden to apply a Mass 
for the intention of one who may ask for the application 
of a Mass and may offer a stipend in the future, but who 
has not yet asked for it, and to keep the stipend after- 


MASS STIPENDS 83 

wards given for the Mass already said. This would be 
a sort of interpretative intention. 

It is unlawful to receive a stipend for a Mass which 
is due and must be applied for some other reason. Thus 
a pastor may not receive a stipend for a Mass he is 
obliged to apply pro populo, even though his salary is not 
sufficient to support him. 

A binating priest who is obliged to apply one Mass 
ex titulo iustitiae, is not allowed to accept a stipend for 
the other, except on Christmas Day, when a priest who 
says three Masses may accept three stipends. A partial 
exception to the general rule is the privilege of accept¬ 
ing some compensation for the other Mass for a rea¬ 
son which is extrinsic to the nature of a Mass stipend as 
such (ex titulo extrinseco). 

The titulus iustitiae applies to every priest holding a 
canonically established parish. Hence the pastor is not 
entitled to accept any stipend on the day on which he is 
obliged to apply the Mass for the people. 

It is forbidden to accept two stipends for the applica¬ 
tion of one and the same Mass, as if the satisfactory 
fruit could be applied for a deceased, and the impetratory 
fruit for a living person. 4 

It is unlawful to receive one stipend for the celebra¬ 
tion, and another for the application of a Mass, unless it 
is certain that one stipend has been offered for the cele¬ 
bration alone without the application. 

It is perfectly legitimate to accept an offering for sing¬ 
ing a High Mass in the place of a sick or absent pastor, 
who may not be able to sing Mass on that day, but 
says nothing about its application, for instance, pro 
populo. In that case the substitute may accept the of- 

4 Prop. damn, by the S. O., Sept. 24, 1665. 


8 4 


THE SACRAMENTS 


fering for the singing of the High Mass and receive a 
stipend for the special intention. For it is evident that 
the offering is given for the special labor of singing High 
Mass and accommodating the absent pastor, who would 
be obliged to sing it himself if he were at home. 

2. Conditions or circumstances are to be observed as 
follows: “It is presumed that one who offers a stipend 
asks only to have the Mass applied; but if he expressly 
determines certain circumstances to be observed in the 
celebration of the Mass, his wishes must be complied 
with.” 

Concerning the conditions of time, be it observed that 
if a term has been expressly set by the donor, the Masses 
must be said before its expiration. This obligation, as 
already observed, follows from the stipulation attached 
to the contract. If no time has been fixed for manual 
stipends, the following rules must be observed: 

a) Urgent Masses must be said as soon as possible 
within an equitable period. Thus if ordered for the 
success of an operation or the happy issue of a child¬ 
birth, it is supposed to be said before or on the day of 
the event. However, the legislator says : (( tempus utile” 
(can. 35), which means, if the priest is not pre-occupied 
with other intentions or obligations. Should he be sick 
or lawfully prevented on the day on which he is obliged 
to say the stipulated Mass, he would have to ask an¬ 
other priest to say the Mass in his stead, provided he 
could find one who would be willing and able to do so; 
if not, he may keep the stipend and say the Mass as soon 
as possible. 

b) If the Masses are not urgent, they must be said 
infra modicum ternpus, within a short time, propor¬ 
tionate to the greater or smaller number of Masses. 
Modicum ternpus always meant one month from the date 


MASS STIPENDS 


85 


of the obligation in case of one Mass. A scale was pro¬ 
posed to the S. Congregation for a greater number as 
follows: 


For 10 Masses, 1 month 


20 “ 2 months 


3 

u 



IOO “ u “ 


The answer was: “The matter is left to the discretion 
of the priest, with due regard to the decree c Ut debita / 
of May 11, 1904, and to the rules given by approved 
authors.” But it should be noted that the proposed scale 
applied to stipends received from one person, not several. 
If, therefore, 100 individuals should each offer one Mass 
stipend, say on the first day of November, the priest 
would have to tell the thirty-first person: “I have al¬ 
ready 30 Masses, and therefore cannot say it myself.” 
If the donor does not insist on a certain time, or that 
the priest addressed should say that Mass himself, the 
priest may send it away or apply the following rule : If the 
donor expressly leaves the time for saying the Mass 
to the discretion of the priest, he may say it when it is 
most convenient for him, provided he does not accept 
more Masses which he himself is requested or obliged 
to say than he can say within a year. The starting-point 
for manual Masses is the date on which the first Mass 
is received and accepted, and from that date runs the 
year within which the Mass or Masses received must 
be said, supposing always that these Masses are personal 
obligations of the receiver. 

A notable delay would be a month, to be reckoned 


86 


THE SACRAMENTS 


after the equitable time ( tempus utile ) -has elapsed, ac¬ 
cording to the scale proposed above. But unless the 
donor has expressly stated that the Mass should not be 
said after the time stipulated by him has elapsed, or that 
the stipend must be returned to the donor, the priest is not 
obliged to return the stipend, because -he may still com¬ 
ply with the obligation. 

Other explicit conditions may concern a certain feast. 
If this condition is made and accepted, it must be ad¬ 
hered to, or the stipend returned, provided the condition 
is one ad finiendum, not merely ad urgendum contractum. 

If the donor asks for a certain Mass, for instance, a 
votive Mass in honor of the Blessed Virgin, the priest 
should say that Mass, though he is not bound sub gravi 
to do so. If a priest is asked to say a Mass for the 
Poor Souls, he should say a “Black” Mass. 

The question has been asked whether a priest would 
satisfy the obligation arising from a stipend offered and 
accepted for saying a Mass for the dead, if he said the 
Mass of the day, though he could and should say a 
“Black” Mass. The S. Congregation of Rites answered 
that if the rubrics permitted a votive Mass or Missa de 
requiem to be said on the day in question, the priest 
would not fulfill his obligation by saying the Mass of the 
day, because the reasonable will of the testator or giver 
must be respected. 

In a mitigated form the same answer was returned 
twenty years ago by the same Congregation. The ques¬ 
tion was: “Does a priest who is given a stipend for a 
Mass to be said for one or several dead, or in honor 
of a holy mystery, or of the Blessed Virgin, or of a 
Saint, fulfill his obligation if he says and applies the 
Mass of the day, because the rubrics do not permit him 
to say the Mass expressly asked for?” The answer was: 


MASS STIPENDS 


87 


“Yes,” but with the addition: “It would be more ad¬ 
visable to comply, as far as possible, with the intention 
of the giver by saying the ‘Black’ or votive Mass.” 
From this decision we may gather that the priest should 
comply with the manifest and express will of the 
giver, but is not under strict obligation to do so, unless 
a direct demand was made as to the kind of Mass to be 
said, especially if it be a foundation Mass. In this coun¬ 
try, we believe, most people are satisfied if the priest says 
a “Black” Mass, even though the intention was directed 
to the benefit of the living, and we do not quite under¬ 
stand why some theologians regard it as incongruous to 
say a “Black” Mass for the living. Does not the act 
of charity done to the Poor Souls enhance, as it were, 
the fruits of the Mass thus applied? Of course, if a 
Mass were asked for in honor of a particular Saint, e. g., 
St. Antony, in the belief that this Saint is a particularly 
powerful intercessor with God, it would not be prudent 
to say a “Black” Mass. 

If the donor wishes a Mass to be said at a special 
altar, his wish should be complied with. This also holds 
concerning privileged altars, which are generally intended 
for the dead, and on which, therefore, “Black” Masses 
should as a rule be offered. The rubrics forbid a Missa 
de Requiem to be said on duplex days, unless it be a 
cantata in die obitus, etc. Yet, says the S. Congrega¬ 
tion, if the Mass is de facto applied for the intention 
of the giver or founder, the privilege is not lost, i. e., 
the indulgence attached to such an altar is gained also 
by a Missa de festo or die occurrenti, prescribed accord¬ 
ing to the rubrics. Neither does it matter whether the 
altar is privileged in perpetuum, or ad tempus, or pro 
certis diebus only, if the Mass is said on the privileged 
days and in the color of the day, according to the rubrics. 


88 


THE SACRAMENTS 


Hence, to gain the indulgence attached to a privileged 
altar it is not necessary to say a “Black,” or Ferial, or 
Vigil Mass with the oration for the deceased, although 
this may be laudably done. 

Should the donor stipulate that the Mass be said in a 
certain church or chapel, this condition, too, must be com¬ 
plied with without additional compensation. 

Gregorian Masses must be celebrated on thirty consec¬ 
utive days without interruption. A priest cannot, for 
instance, say three Masses on Christmas Day as Grego¬ 
rian Masses, and then resume the series on the 28th of 
December. Nor can, he give the thirty Masses to dif¬ 
ferent priests that they may be said in less than thirty 
days. On the other hand, it is not required that the 
same priest say all thirty Masses, or that he say a “Black” 
Mass on the days when the rubrics permit it. 

Since the Gregorian Masses are a burden and a risk, 
it would not be against ecclesiastical law if the Ordinaries 
fixed an “extra” tax for them. For religious the Or¬ 
dinary in that case is the major superior, who, there¬ 
fore, is entitled to make or authorize an additional charge 
for Gregorian Masses. 

If these are given or sent away to another priest, the 
one who sends them is not allowed to retain part of the 
stipend for the trouble of finding priests who are willing 
to say them, or for the risk encountered. Nor may 
any part of the stipend be retained for Gregorian Masses 
if they take the place of funeral Masses. 5 

Since Gregorian Masses also are of the nature of a 
human contract, it seems reasonable to maintain 6 that an 

6 S. C. C., April 16, 1921 (A. Ap. S'., XIII, 532 ff.). 

6 Thus Arregui, Summarium Theologiae Moralis, ed. 4, 1919, 
n. 561. 


MASS STIPENDS 


89 


involuntary interruption does not involve the obligation 
of repeating the Masses already said or having recourse 
to composition. Thus if a priest who has no other priest 
at hand, should suddenly take sick, or should have per¬ 
chance used invalid matter, he would not be obliged to 
say again the Masses already said, even though the series 
had been interrupted. 

c) The personal obligation which results from the na¬ 
ture of a Mass stipend remains until the Mass is said 
either by the contracting priest or by another in his stead. 
Concerning Masses sent away or handed over to inter¬ 
mediary persons, note: 

(a) The Ordinaries no longer have the power (unless 
it has been granted to them by a special indult of the 
Holy See after the Code went into effect) to prevent 
Masses being sent outside of their dioceses. The Code 
has abolished the former legislation, and a rescript of 
the S. C. of the Council has declared that the exercise of 
this former power would be not only beyond, but against, 
the Code. 7 

(b) The Code rules that whosoever has Mass stipends 
to be given to others—if the donor does not object to 
their being sent away, or leaves it to the discretion of 
the priest—should distribute them as soon as possible. 
The lawful time for saying the Masses commences on 
the day on which the priest who is to say them has re¬ 
ceived them, unless the contrary is evident. 

(c) The qualities of the priests to whom Masses, of 
which one may freely dispose, may be entrusted, are 
then described. Any priest may be freely chosen, pro¬ 
vided he is absolutely reliable or recommended by the 
local Ordinary. It is not necessary, therefore, that he 


7 S. C. C., Feb. 19, 1921 (A. Ap. S., XIII, 228 f.). 


90 


THE SACRAMENTS 


be known personally ( facie ad faciem ) to those who dis¬ 
tribute the Masses. 

(d) The duration of the personal obligation is set forth 
thus: Whosoever gives to others Mass stipends received 
from the faithful, or otherwise entrusted to his care, is 
personally responsible for them until he is informed that 
the obligation has been accepted and the stipend re¬ 
ceived. 

(e) The amount to be transmitted is stated in the 
following words, with due distinction between manual 
and foundation Masses: He who sends manual stipends 
to others, must transmit them as he has received them, 
i. e., in full, unless the donor has expressly permitted 
him to retain part of the stipend, or unless it is evident 
that whatever exceeds the synodal or customary stipend 
was intended for the person to whom the stipend was 
given. 

The excess or surplus of quasi-manual stipends may be 
lawfully retained if the pingue stipcndium takes the place 
of a partial endowment of an ecclesiastical prebend or 
pious institution, unless the will of the founder reads 
otherwise. In that case, if the beneficiary has the 
Mass said by another priest, the former is bound to 
hand only the customary or diocesan stipend to his sub¬ 
stitute. 

(f) Mass-obligations not yet fulfilled at the end of a 
year should be disposed of thus: Administrators of 
pious institutions, and all, whether clerics or laymen, who 
are in any way bound to have Mass obligations fulfilled, 
must at the end of each year send the Masses not yet 
said to their Ordinaries, in some manner to be deter¬ 
mined by the latter. 

The time for complying with this obligation runs, for 
quasi-manual stipends, from the end of the year during 


HOLY COMMUNION 


91 


which the Masses should have been said, and for manual 
stipends from the day on which the obligation was ac¬ 
cepted, with due regard to the intentions of the donor. 

D. The control of Mass stipends rests with the Or¬ 
dinaries. 

1. The right and duty of watching over the fulfilment 
of Mass obligations belongs to the Ordinary of the di¬ 
ocese with regard to churches in charge of secular priests, 
and to the superiors of religious with regard to their 
churches. 

2. Rectors of churches and other pious institutions 
where Mass stipends are received, whether in charge of 
seculars or religious, shall keep a special book, in which 
the stipends must be entered as to number, intention, 
amount, and date of celebration. The Ordinaries are 
obliged to inspect these hooks at least once a year, either 
personally or by deputy. 

Local Ordinaries and religious superiors who give 
Masses to their own subjects or to others, shall promptly 
enter in a book the Masses they receive, together with 
the amount of each stipend, according to the order of 
time in which they were received, and see to it that they 
are said as soon as possible. 

Every priest, secular as well as religious, shall keep 
an accurate record of the intentions received and the 
Masses said by him. 


CHAPTER II 

The Holy Eucharist as a Sacrament 

1. The ordinary minister of Holy Communion is the 
priest, the extraordinary minister may also be a deacon, 
if the local Ordinary or pastor grants him permission, 


92 


THE SACRAMENTS 


which should be given for a grave reason, and may be 
lawfully presumed in case of necessity. 

2. Holy Communion may be distributed at or outside 
the liturgical services. 

a) Any priest may distribute Holy Communion dur¬ 
ing Mass, and, if he celebrates privately, also immediately 
before and after Mass, with due regard to the regulations 
made for private oratories. 

Every priest enjoys the same right outside of Mass, 
provided he has at least the presumed permission of the 
rector of the church, if he is a stranger. 

The question naturally arises: What is a private 
Mass? Our answer is, every Mass that is not a solemn, 
or cantata, or conventual, or parochial Mass, i. e., ap¬ 
plied pro populo. 8 

b) Holy Communion should be brought to the sick 
publicly, unless a just and reasonable cause advises other¬ 
wise. 

The right and duty to bring Holy Communion publicly 
to the sick, even though they be not his parishioners, be¬ 
longs to the pastor within the limits of his parish. Other 
priests may perform this function only in case of neces¬ 
sity or with the (at least presumed) permission of the 
pastor or Ordinary. 

In our country, except perhaps in some parishes with 
an exclusively Catholic population, it is customary to 
bring Holy Communion to the sick privately. This is 
not a strictly parochial right. Hence any priest may 
bring Holy Communion privately to the sick, provided he 
has the (at least presumed) permission of the custodian 
of the Blessed Sacrament. 

When Holy Communion is brought privately to the 
sick, care should be taken that due reverence and respect 

8 See our Commentary, Vol. IV, p. 215 f. 


HOLY COMMUNION 


93 


is rendered to the august Sacrament, according to the 
rules prescribed by the Apostolic See. To bring the 
Viaticum belongs to the strictly parochial rights, but in 
case of necessity curates or other priests may reasonably 
suppose or presume the permission of the pastor or local 
Ordinary. Bishops and clerical religious institutes are 
exempt from this exclusive right. 9 

c) Holy Communion may be administered under the 
species of bread only. This is unleavened in the Latin, 
leavened in the Oriental Church. But in case of neces¬ 
sity, if no priest of the respective rite is present, a priest 
of the Oriental rite, who would otherwise use leavened 
bread, may administer the Holy Eucharist in unleavened 
bread, and conversely, a priest of the Latin rite, who 
would ordinarily use unleavened bread, may give Holy 
Communion in leavened bread; but each must observe 
the rubrics of his own rite. 

3. Every baptized person not forbidden by law may 
and must be admitted to Holy Communion. To children 
who, by reason of their tender age, are unable to know 
and desire this Sacrament, it should not be given, un¬ 
less they are in danger of death, in which case it may 
and must be given them, provided they are able to dis¬ 
tinguish the Eucharist from common bread and to adore 
it reverently. 

Apart from the danger of death, a fuller knowledge 
of Christian doctrine and a more careful preparation is 
justly demanded, so that the child may know, as far as 
he is capable, at least the mysteries which are absolutely 
necessary for salvation (necessitate medii) and approach 
the Holy Eucharist devoutly, according to the capacity 
of his age. 

It belongs to the confessor and to the parents or 


• See can. 397; can. 514. 


94 


THE SACRAMENTS 


guardians to judge whether children are sufficiently pre¬ 
pared for first Holy Communion. But it is the pastor’s 
office to see to it, by an examination if he deems it neces¬ 
sary, that children are not admitted to Holy Communion 
before they have attained to the age of discretion or are 
sufficiently prepared, and to take care that those who 
have attained the use of reason and are sufficiently pre¬ 
pared, are nourished with this divine food as soon as 
possible. 

The law forbids the following to receive Holy Com¬ 
munion: those who are publicly unworthy {publice in - 
digni). Such are the excommunicated, interdicted, and 
notoriously infamous, unless they have shown signs of 
repentance and amendment and have repaired the scandal 
publicly given. 

4. The preparation is partly spiritual, partly physical. 

Holy Communion must be received in the state of 
grace. In case of necessity, when no confessor is avail¬ 
able, perfect contrition should be elicited. 

The requirement of the Eucharistic fast is stated thus: 
One who has not fasted since midnight cannot be ad¬ 
mitted to Holy Communion, except he be in danger of 
death, or it be necessary to prevent irreverence towards 
the Blessed Sacrament. 

The sick who have been in bed for a month and have 
no certain hope of speedy recovery may, if the confessor 
prudently advises, receive the Holy Eucharist once or 
twice a week, even though they have taken medicine or 
food by way of a drink. This privilege now applies to all 
the faithful without exception. All that is required is 
the confessor’s (not the pastor’s) advice. 

“Per modum potus” includes broth, coffee, or any 
liquid food mixed with something solid, as, for instance, 


HOLY COMMUNION 


95 

wheat meal ( semolino ) or ground toast (pangrattato), 
etc., provided the liquid form remains. 

5. Easter Duty .—Every Catholic who has reached the 
age of discretion, i. e., attained to the use of reason, must 
receive Holy Communion at least once a year, during 
Easter time, unless his pastor advises him to abstain 
from it for a time, for some reasonable cause. 

The time for receiving the Easter Communion extends 
from Palm Sunday to Low Sunday, but may be pro¬ 
longed by the local Ordinary for all the faithful of the 
diocese from Laetare Sunday to Trinity Sunday, both 
inclusive,—provided circumstances of persons and place 
demand such a prolongation. The indult granted and 
inserted as a conciliary decree 10 may doubtfully be con¬ 
sidered as valid, at least if regarded as a particular 
law. 

The Easter duty must be complied with also by im- 
puberes, i. e., boys less than fourteen and girls less than 
twelve years old; parents, guardians, confessors, pastors, 
and teachers should see to it that this precept is complied 
with. 

The faithful should be instructed that the Easter 
duty is not complied with by a knowingly sacrilegious 
communion. On Holy Thursday the clergy should 
receive Holy Communion if they do not celebrate 

Mass. 

6. Frequent Communion and the Viaticum .—Frequent 
Communion should be prudently and zealously promoted. 
As to the Viaticum, the Code insists upon the obligation 
to receive it. Those in danger of death, although they 
have already received Holy Communion on the same 
day, should be strongly advised to receive it again when 


10 Cone. Balt. II, n. 257. 


96 


ADMINISTRATIVE LAW 


the crisis sets in. It is also lawful and becoming to ad¬ 
minister the Viaticum several times on different days, 
as long as the danger of death lasts, according to the 
prudent judgment of the confessor. In that case the 
formula “Corpus Domini” is to be employed. 

7. As to the rite, it is stated that Holy Communion, 
even for devotion’s sake, may be distributed to the faith¬ 
ful of any rite in the species consecrated in any rite; but 
they should be advised to receive the Paschal Communion 
in their own rite. The Holy Viaticum should, except 
in case of necessity, be received by the dying in their 
own rite. 

Time and Place for Distributing Holy Communion 

1. The Holy Eucharist may be distributed every day 
of the year, except on Good Friday, when only the Viati¬ 
cum may be administered to the sick. 

On Holy Saturday Communion may be distrib¬ 
uted only at the (solemn) Mass or immediately there¬ 
after. 

Holy Communion may be distributed only at hours 
when Mass may be said, unless there are good reasons for 
deviating from this rule. 

But the Holy Viaticum may be administered at any 
hour of the day or night. 

A priest saying Mass is not allowed to distribute Holy 
Communion to persons who are so far away from the 
altar that he himself would lose sight of it were he in 
their place. 

2. Holy Communion may be distributed wherever 
Mass may be said, even in private oratories, unless the 
local Ordinary in some particular case for just reasons 
forbids it. 


THE SACRAMENT OF PENANCE 


97 


TITLE IV 

THE SACRAMENT OF PENANCE 

(Can. 870-910) 

In the Sacrament of Penance, through a judicial abso¬ 
lution imparted by a legitimate minister, all sins com¬ 
mitted after baptism are forgiven to the properly dis¬ 
posed Catholic. 

1. The Minister and his Jurisdiction. —The sole minis¬ 
ter of this Sacrament is the priest, who, to absolve validly, 
needs not only the power of order, but also jurisdiction, 
either ordinary or delegated, over the penitent. 

Pastors, by virtue of their office, have ordinary juris¬ 
diction in the whole territory over which their pastoral 
care extends. Those who take the place of pastors are 
endowed with the same power. Thus the oeconomi (pas¬ 
tors of vacant parishes) and coadiutores, viz., priests 
who take the place of absent pastors, may hear confes¬ 
sions like the pastor himself. The same cannot be af¬ 
firmed of curates and assistants, whose jurisdiction is not 
ordinary. The local Ordinary may hear confessions in 
any place of his diocese. Cardinals enjoy ordinary 
jurisdiction throughout the whole Church. 

Those who possess ordinary jurisdiction for absolving 
may absolve their own subjects ez^erywhcre. Thus a pas¬ 
tor may absolve his parishioners and an Ordinary his 
diocesans in any part of the world. 

Delegated jurisdiction is conferred by the local Or¬ 
dinary on priests, secular as well as religious, even ex¬ 
empt religious, for hearing the confessions of both secular 
and religious persons; but priests of religious institutes, 
though thus endowed with delegated jurisdiction, need 
in addition thereto the permission of their superiors, in 


98 


THE SACRAMENTS 


order to absolve licitly. Local Ordinaries as well as re¬ 
ligious superiors should grant these faculties only after 
examining the petitioner as to his fitness, unless he is 
well known to them. 

Secular as well as religious priests who are approved 
for hearing confessions in some place, no matter whether 
their jurisdiction be ordinary or delegated, may validly 
and licitly absolve vagi and peregrini, who come to them 
from another diocese or parish, and also Catholics of any 
Oriental rite. 

Without exception and notwithstanding any privilege 
or particular law, secular as well as religious priests, of 
whatever rank or office, need special jurisdiction for val¬ 
idly and licitly hearing the confessions of female religious 
and their novices. This jurisdiction is granted by the 
Ordinary in whose diocese the religious house is located. 
Only Cardinals are exempt from this law. 

Delegated jurisdiction must be granted expressly, either 
in writing or orally, but no charge may be made for the 
grant. Loss of ordinary jurisdiction is brought about by 
the loss of the office to which the jurisdiction is attached. 
If, therefore, a pastor resigns, his jurisdiction ceases 
from the moment his resignation is accepted and 
the acceptance intimated; if a pastor is deprived of, or 
removed or transferred from, his parish, his jurisdic¬ 
tion ceases from the moment these measures have been 
intimated to him. After one has been declared to have 
incurred, or has been condemned to, excommunication, 
or personal interdict, or suspension from office, his juris¬ 
diction also ceases. 

Delegated jurisdiction has to be given expressly and 
is lost only by express revocation. But such a recall of 
faculties should not be made except for grave reasons, 
more particularly for reasons touching confession. 


THE SACRAMENT OF PENANCE 


99 


When there is danger of death, any priest, even though 
not otherwise approved for hearing confessions, may 
validly and licitly absolve any penitent from all sins and 
censures, including those which are reserved and no¬ 
torious, even though an approved priest may be present. 
This also holds concerning the absolutio complicis in 
danger of death. But the priest who thus absolved an 
accomplice would act illicitly if there were no urgent 
necessity for his action, e. g., if another priest could be 
called in without giving scandal or seriously impairing the 
reputation of the guilty priest. 

Confession at Sea. —Any priest traveling on the ocean 
may hear the confessions of all Catholics who travel with 
him on board the same ship, even though the vessel on 
its trip may pass, or even stop for some time at, places 
subject to different Ordinaries. But in order to absolve 
his fellow travelers validly and licitly, a priest must have 
duly obtained faculties from his own Ordinary, or from 
the Ordinary of the place he sails from, or from the 
Ordinary of any port which the vessel may pass. 

As often as the vessel stops on its trip, the priests on 
board, if endowed with faculties as stated, may validly 
and licitly hear the confessions of such of the faithful 
as may for any reason visit the vessel, as well as of those 
who approach them for that purpose when they go on 
land for a short stop. In the latter case, they may ab¬ 
solve also from cases reserved to the Ordinary of the 
diocese where they stop. 

2. Reservation. —Those who possess ordinary power 
for granting faculties to hear confession or to inflict 
censures, are empowered to call certain cases before their 
tribunal, thus restricting the power of absolving vested 
in their inferiors. However, vicars capitular and vicars 
general may not use this power of restricting without a 


IOO 


THE SACRAMENTS 


special mandate. This airocatio, which may be made with 
or without censure, of cases is called reservation. 

Only one sin is, as such, reserved to the Holy See, 
to wit, falsely accusing an innocent priest before the 
ecclesiastical court of the crime of solicitation. 

The cases to be reserved shall be few, no more than 
three or four of the more grievous and atrocious ex¬ 
ternal crimes, and shall be specifically determined. The 
reservation itself should not remain in force longer than 
is necessary to uproot some inveterate public crime and 
to restore Christian discipline. 

Power to absolve from episcopal reserved cases is 
granted to the Canon Penitentiary. Besides, the legis¬ 
lator wishes that the faculty of absolving from these re¬ 
served cases should be habitually delegated to the rural 
deans, who should also be given the power of toties 
quoties subdelegating confessors of their districts, espe¬ 
cially in parishes distant from the episcopal see, when¬ 
ever these confessors have recourse to the deans for in¬ 
dividual and urgent cases. 

Pastors and those who go by the name of pastors, viz., 
the administrators of vacant parishes and the substitutes 
of pastors, may absolve from these cases which the Or¬ 
dinary has reserved to himself, viz., purely episcopal 
cases—not papal cases—, during the whole paschal season. 
As often as a person approaches the Sacrament of Penance 
during the paschal season and confesses a reserved case, 
he may be absolved by the pastor, but not by a curate 
or assistant. 

Missionaries enjoy the same power during the time of 
a mission. All reservations cease or lose their force: 

i°. When those who go to confession are sick and 
cannot leave the house, or if they are about to be mar¬ 
ried viz., within a few days from marriage; 

2°. As often as the lawful superior refuses a faculty 


THE SACRAMENT OF PENANCE 


IOI 


asked for in a particular case, or when, according to the 
prudent judgment of the confessor, the faculty cannot 
be asked from the lawful superior without great incon¬ 
venience to the penitent or without danger of violating 
the sacramental seal; 

3°. Outside the territory of the one who has reserved 
the case, even though the penitent has repaired thither 
solely for the purpose of obtaining absolution {in frau- 
dem legis). 

3. Attitude of the Confessor. —If the confessor has no 
reason for doubting the proper disposition of the penitent, 
and the latter demands absolution, it is neither to be 
refused nor postponed. 

According to the quality and number of the sins com¬ 
mitted, and the condition of the penitent, the confessor 
should impose a wholesome and proportionate penance, 
which the penitent must willingly accept and perform 
in person. 

The confessor should remember that he is a judge and 
physician, appointed to administer divine justice as well as 
mercy, in order to provide for God’s honor and the 
welfare of souls. 

He shall be careful never to ask the name of an ac¬ 
complice, or to detain the penitent with inquisitive and 
useless questions, especially concerning the sixth com¬ 
mandment, and above all he shall not imprudently ask 
young people about things of which they are supposed 
to be ignorant. 

The additional prayers added to the formula of absolu¬ 
tion, though not required for absolution, should not be 
omitted without a just cause, such as a large concourse 
of penitents. 

The sacramental seal is inviolable, and hence the con¬ 
fessor shall be most careful not to betray the penitent 


102 


THE SACRAMENTS 


by any word or sign or in any other way, for any reason 
whatsoever. 

The obligation of keeping the sacramental seal binds 
also interpreters and others who may in any way have ac¬ 
quired knowledge of confession. 

The confessor is strictly forbidden to make use of the 
knowledge gained from confession, if this use would 
involve injury ( gravamen ) to the penitent, even though 
the seal of confession were not endangered. 

Superiors, who are actually such at the time, as well 
as confessors who afterwards become superiors, are not 
allowed to make use of knowledge gained in the con¬ 
fessional for the external government of their subjects. 

The Code lays a duty of justice on pastors in the fol¬ 
lowing words: “Pastors and others entrusted with the 
care of souls, by virtue of their office, are obliged in 
strict justice to hear the confessions of the faithful com¬ 
mitted to their care as often as the latter reasonably de¬ 
mand to be heard.” 

In urgent cases all confessors, and in case of danger 
of death all priests, are obliged in charity to hear con¬ 
fessions. 

4. The recipients of the Sacrament are all the faithful 
who are conscious of mortal sins committed after Bap¬ 
tism and not yet directly forgiven by the keys of the 
Church. The accusation must be preceded by a careful 
examination of conscience. Necessary matter, therefore, 
are mortal sins not yet forgiven, whereas sins committed 
after Baptism, whether grievous but already forgiven by 
the power of the keys, or merely venial, are sufficient 
matter for the Sacrament. 

Those who are unable to confess otherwise, may, if they 
wish, confess through an interpreter, provided abuses 
and scandals are avoided, 


INDULGENCES 


103 


All the faithful are free to confess their sins to any 
lawfully approved confessor whom they may prefer, even 
though he belong to another rite. 

Without distinction of sex, all who have reached the 
age of discretion are obliged to confess their sins once a 
year. This obligation is not fulfilled by a sacrilegious or 
wilfully invalid confession. The obligation of denounc¬ 
ing solicitation is binding to the extent established by 
the Constitution “Sacramentum Poenitentiae.” 

The place for sacramental confession is the church, or 
a public or semi-public oratory. The confessional for 
hearing women’s confessions must be in an open and 
visible place, generally the church or a public or semi¬ 
public oratory assigned to women; it must have an im¬ 
movable grate with small holes. Women’s confessions 
should not be heard outside the confessional, except in 
case of sickness, or for other reasons of necessity, and 
under such precautions as the local Ordinary may deem 
opportune. 


INDULGENCES 

(Can. 911-936) 

1. Nature ana Kinds. —A>r indulgence is a remission 
before God of temporal punishment due to sins, the guilt 
of which is already forgiven or wiped out. The source 
of all indulgences is the treasury of the Church. They 
are granted by the ecclesiastical authority in favor of 
the living as well as of the dead, but to the former are 
applied by way of absolution, whilst the latter can ob¬ 
tain their benefits only by way of suffrage. Indulgences 
should, therefore, be highly esteemed by all the faithful. 

If a plenary indulgence is granted for the feasts of our 


104 


THE SACRAMENTS 


Lord or of the Blessed Virgin, it must be understood 
only of those feasts which are assigned in the general 
calendar of the Church, to wit: Christmas, the Circum¬ 
cision (New Year’s Day), the Epiphany, Easter Sunday, 
the Ascension, and Corpus Christi; or the feasts of the 
Immaculate Conception, the Purification, the Annuncia¬ 
tion, the Nativity, and the Assumption of the Blessed 
Virgin Mary. Other feasts mentioned in private cal¬ 
endars, for instance, those of religious, are not included 
in this grant. 

A jubilee indulgence is one gained during the time of a 
jubilee, although it may, by special favor, be granted 
also at other times. There are two kinds of jubilees, 
one called ordinary, granted at fixed intervals, now gen¬ 
erally every twenty-five years, the other called ex¬ 
traordinary, for special occasions. 

2. Grantor. —Besides the Roman Pontiff, to whom the 
stewardship of the whole spiritual treasury of the Church 
is entrusted, only those who are expressly authorized to 
do so by law can, by ordinary power, grant indulgences. 

The Pope may grant indulgences for the whole Church, 
without any limit as to kind, place, or person. 

Archbishops and bishops may grant indulgences in their 
respective provinces and dioceses, the former ioo days, 
the latter fifty days. These indulgences are called local 
because they apply only to the territory over which a 
prelate has jurisdiction. 

Cardinals may grant a two hundred days’ indulgence, 
toties quoties, in any place (titular church or institution) 
and to any person under their jurisdiction and protection. 
Their power also is an ordinary one by law. 

Besides these no other prelates enjoy by law the power 
of granting indulgences. Thus it has been decided that 
a titular bishop, who is at the same time auxiliary to 


INDULGENCES 


105 

another bishop, may not grant an indulgence of forty days 
in the diocese in which he is auxiliary. 

Apostolic Delegates, who have received faculties from 
the Pope for granting indulgences, should abstain from 
attaching such to devotional objects or acts of piety which 
have already been enriched with indulgences by a bishop 
within his territory. 

Bishops may impart the papal blessing in their own di¬ 
ocese with a plenary indulgence, according to the formu¬ 
lary prescribed (in the Pontificate Romanum) twice a 
year: once on the feast of Easter, and once on another 
day, which they themselves may designate, even though 
they should only assist at the solemn Mass. The same 
may be imparted, but only on one of the more solemn 
feasts of the year, by abbots or prelates nullius, by vicars 
Apostolic and prefects Apostolic, even though they have 
not the episcopal dignity. 

Bishops, abbots or prelates nullius, Apostolic vicars and 
prefects, and the major superiors of exempt clerical re¬ 
ligious orders may designate and declare one altar daily 
privileged forever in their cathedral, abbatial, collegiate, 
conventual, parochial and quasi-parochial churches, pro¬ 
vided there be no privileged altar in said churches as 
yet. In public or semi-public oratories, unless they are 
united to a parish church or serve as its subsidiaries, no 
privileged altar may be assigned by the prelates men¬ 
tioned. 

On All Souls' Day all Masses enjoy the same privilege 
as if they were said on a privileged altar. All the altars 
of a church in which the Forty Hours' Devotion is held 
are privileged during this devotion. 

No higher stipend may be charged for Masses cele¬ 
brated on a privileged altar because of this privilege. 

New indulgences, not yet published at Rome, may not 


io6 


THE SACRAMENTS 


be promulgated without the consent of the local Ordinary. 
This law is binding also on regulars. 

In publishing books, pamphlets, etc., which contain in¬ 
dulgences for various prayers and pious works, can. 1388 
must be observed. It rules that such indulgences pre¬ 
suppose the permission of the local Ordinary. The 
express permission of the Holy See is required for pub¬ 
lishing, in any language, authentic collections of prayers 
and good works enriched with indulgences by the Apos¬ 
tolic See. The same express permission is required for 
publishing lists of papal indulgences, and summaries of 
indulgences, whether already collected but not yet ap¬ 
proved, or to be made from various grants. 

3. A plenary indulgence is the remission of the whole 
debt of temporal punishment due to sin. To gain it 
fully, one must be free from all affection for sin. 

A partial indulgence is the remission of a part of the 
temporal punishment due to sin, and is gauged by the 
public penance prescribed by the penitential canons of 
the early Church. In this sense a partial indulgence is 
indeed a remittance of the penances imposed by the 
former penitential discipline and valid before the external 
forum of the Church, but it would be wrong to imagine 
that this is its only effect. Even a partial indulgence 
signifies and effects the remission of temporal punish¬ 
ments due to sin before God or in the court of conscience. 
Consequently, an indulgence of seven years means a re¬ 
mission of the temporal punishments which were formerly 
imposed by the ecclesiastical authority, for instance, seven 
years of fasting twice a week on bread and water, but as 
effective of true remission. 

An indulgence, plenary or partial, granted for the 
feasts of the Apostles, must be understood of the main 
or spiritual birthday feasts, not of other incidental feasts, 


INDULGENCES 


107 

such as St. Peter’s Chair or Chains, St. Paul’s Conver¬ 
sion, etc. 

If a plenary indulgence is granted as quotidiana per- 
petua vel ad tcmpus, this means that the faithful who visit 
the respective church or oratory may gain said indul¬ 
gence on any day,—week day or Sunday,—but only once 
a year, unless the grant contains an extensive clause. 
Therefore, if the grantor intends to grant an indulgence 
for every day, he must explicitly say so. 

Indulgences attached to rosaries (beads) and other 
objects are lost if the beads or objects are destroyed 
or sold, but not if they are given away. 11 

4. There are certain conditions required on the part of 
those who wish to gain indulgences, and certain prescrip¬ 
tions attached to indulgences, either in general or in 
particular. 

(a) To be capable of gaining an indulgence for one¬ 
self, one must be baptized, not excommunicated, in the 
state of grace at least when one complies with the last 
work prescribed, and a subject of the grantor. To really 
gain the indulgences the capable subject must have at 
least the general intention of gaining them and comply 
with the conditions prescribed at the time and in the 
manner set forth in the grant. 

A plenary indulgence is understood to be granted in 
such a way that, if one cannot gain it in its entirety, 
one may gain it partially, in proportion to his disposition. 
Unless the tenor of the grant sounds differently, in¬ 
dulgences granted by a bishop may be gained by his 
subjects also when outside their own diocese. Peregrini, 
vagi, and all who live in a territory may gain the indul¬ 
gences granted for that territory. This, of course, is 

11 What we said on this subject in Vol. IV, p. 380 f., has been 
confirmed by the S. Poenit, Feb. 18, 1921 (A. Ap. S., XIII. 164). 


ioS 


THE SACRAMENTS 


to be understood of indulgences that are not merely local; 
for local indulgences cannot be gained outside the place 
to which they are attached. 

Unless the contrary is expressly stated, a plenary in¬ 
dulgence may be gained only once a day, even though the 
same works are performed several times. But a partial 
indulgence may be gained as often as the works pre¬ 
scribed are repeated, unless the contrary is expressly or¬ 
dained. 

All the faithful of both sexes, who lead a life in com¬ 
mon. either as religious, or as inmates of an institution, 
a place of study, a hospital, or an asylum for the aged or 
disabled, may gain an indulgence for which the visit of 
a public oratory is prescribed, by visiting the semi-pub¬ 
lic oratory or chapel in the house in which they reside, 
if this house has no public oratory or church attached, 
provided the house has been established with the consent 
of the Ordinary and is considered a religious institute. 
The same indulgence may be gained in the same way 
by all who wait on, or serve, the members of such a 
house, and reside therein. But this favor can be made 
use of only if the church or public oratory, the visiting 
of which is prescribed for gaining the indulgence, is 
not determined or designated. Hence, if the visit of a 
certain church or oratory, for instance, the parish church, 
or the church of a religious order, were expressly pre¬ 
scribed, the indulgence could not be gained in the manner 
described above. 

Finally, in order to gain the indulgence in the above- 
named semi-public oratory, the other works or condi¬ 
tions imposed must be complied with. 

No one who gains indulgences can apply them to other 
living persons, but he may apply all indulgences granted 


INDULGENCES 


109 

by the Roman Pontiff to the Poor Souls in Purgatory, 
unless a contrary provision has been made. 

(b) Prescriptions are set forth as follows: If confes¬ 
sion is required for gaining an indulgence, it may be 
made within the eight days immediately preceding the 
day to which the indulgence is affixed; Communion may 
be received on the day before the feast; both confession 
and communion may be received during the entire oc¬ 
tave. 

Indulgences granted for pious exercises conducted dur¬ 
ing a triduum or within a certain week, may be gained 
if the prescribed confession and Communion are made 
during the octave immediately following the close of these 
devotions. 

Those who are accustomed to go to confession at least 
twice a month, or to Communion daily in the state of 
grace and with an upright and holy intention, although 
they do not receive every day, may without confession 
gain all the indulgences for which confession is prescribed 
as a necessary condition. Indulgences of the ordinary 
and the extraordinary jubilee are, however, excluded from 
this favor. 

No indulgence can be gained by performing a good 
work to which one is obliged by law or precept, unless 
the grant expressly admits such duplication. Thus fast¬ 
ing in Lent cannot be taken as fasting for gaining an in¬ 
dulgence. A priest cannot comply with the condition of 
saying certain prayers for gaining an indulgence by recit¬ 
ing his Breviary. 

Those, however, who perform a good work imposed 
as a sacramental penance may thereby comply with the 
penance and gain the indulgence, if said good work be 
indulgenced. 


no 


THE SACRAMENTS 


Indulgences may be attached to one and the same ob¬ 
ject or place on various titles, but by one and the same 
good work to which by reason of different titles indul¬ 
gences are attached, these various indulgences cannot 
be gained unless the work prescribed be confession or 
Communion, or unless the rescript reads otherwise. 

If general prayers for the intention of the Sovereign 
Pontiff are prescribed for gaining an indulgence, mental 
prayer is not sufficient; the vocal prayers may be chosen 
ad libitum by the faithful, unless some special oration is 
prescribed. 12 

If a special prayer is prescribed, the indulgence may 
be gained by reciting that prayer in any language, pro¬ 
vided the accuracy of the translation is assured by a 
declaration of either the S. Poenitentiaria or the Ordinary 
of any diocese where the language is spoken. But no 
indulgence is gained if any addition, subtraction, or inter¬ 
polation is made in regard to the required prayers. 

Here a remark may be added concerning the manner 
of reciting the Rosary. The insertion of the words an¬ 
nouncing the respective mystery in each “Hail Mary” is 
against the Code. However, the S. Poenitentiaria has, 
by a general indult, granted that the addition may be al¬ 
lowed in all places where it was customary. 13 The cus¬ 
tom originated in Germany and formerly (viz,, in 1859) 

12 It may be held, with solid reason, that one Our Father, with¬ 
out the Hail Mary, is sufficient. 

13 July 27, 1920, the S. Poenit, had simply and categorically de¬ 
clared that this method of reciting the Rosary nullified the indul¬ 
gences ; but German and Swiss bishops finally obtained the modi¬ 
fication mentioned in the text; S. Poenit., Jan. 22, 1921 ( A . Ap. 
S. XIII, 163 f.). But parishes cannot form a juridically valid 
custom. Hence not even the Apostolic See can “come to the aid” 
of a stubborn pastor who has unlawfully introduced this “cus¬ 
tom” in reciting the beads. 


EXTREME UNCTION 


hi 


was granted only for certain dioceses of that country. 

Pious works imposed for gaining indulgences may be 
commuted by the confessor into other good works for 
those who are lawfully prevented from performing the 
good works prescribed. 

Mutes may gain the indulgences attached to the recital 
of public prayers if, together with the other faithful, 
they assist and raise their minds and hearts to God; as 
to private prayers, it is sufficient that they recollect them 
in their mind and follow them either by signs or with 
their eyes (if they are able to read). 

TITLE V 

EXTREME UNCTION 

(Can. 937 - 947 ) 

1. The Sacrament of Extreme Unction is administered 
by anointments with duly blessed olive oil, and by pro¬ 
nouncing the words prescribed in the approved rituals 
of the Church. 

2. Every priest, and no one but a priest, may validly 
administer this Sacrament. 

Since the administration of Extreme Unction is a 
strict parochial right, it is by law reserved to the pastor, 
and assistant priests or curates must have the pastor’s 
permission to exercise it. This permission may be given 
habitually. Besides, the diocesan statutes or the letter 
of appointment may determine whether or not assistants 
have this right. The oeconomus, or temporary adminis¬ 
trator, of a parish enjoys full parochial rights and may, 
therefore, give permission to another priest to administer 
this Sacrament. Regulars have been enjoined time and 
again not to interfere with this right. Secular Tertiaries 


112 


THE SACRAMENTS 


are not allowed to receive this Sacrament at the hands of 
the Friars Minor. To canons of cathedral as well as 
collegiate chapters this Sacrament must be administered 
by the pastor in whose parish they have their domicile. 
Exempt from these rules is the Ordinary of the diocese, 
to whom the dignitaries or canons should administer Ex¬ 
treme Unction according to rank and precedence. 

The ordinary minister, says can. 939, is obliged in jus¬ 
tice to administer Extreme Unction either himself or by 
substitute. In case of necessity every priest is bound 
by charity to administer this Sacrament. 

3. The Recipient. —Extreme Unction may be adminis¬ 
tered only to faithful Catholics, who have reached the age 
of discretion and are in danger of death in consequence 
of sickness or old age. The Sacrament may not be re¬ 
peated in the same sickness, unless the patient has re¬ 
covered after receiving Extreme Unction, and his con¬ 
dition has again become critical. 

When it is doubtful whether the sick person has at¬ 
tained to the use of reason—not the age of discretion—or 
whether he or she is really in danger of death, or already 
dead, Extreme Unction should be conferred conditionally. 

To those who asked for Extreme Unction at least im¬ 
plicitly or interpretatively whilst in the full possession of 
their mental faculties, the Sacrament may be administered 
even though they have lost their senses or the use of 
reason. 

Although this Sacrament is not absolutely necessary as 
a means of salvation, yet no one may neglect it; and care 
and diligence should be taken that the sick receive it 
while fully conscious. 

4. Rites and Ceremonies. —The olive oil to be used in 
the administration of Extreme Unction must be blessed 
for that purpose by the bishop or by a priest who has 


HOLY ORDERS 


113 

obtained the necessary faculty from the Apostolic See. 

The “oil of the sick” must be preserved in a vessel 
of silver or white metal (a composition of lead and 
silver), and in a decent and properly equipped place, 
but it may not be kept at home, except in the case per¬ 
mitted by can. 735. 

The anointments must be accurately performed, as 
stated in the Roman Ritual, which prescribes the words, 
the order and the manner of anointing. In case of neces¬ 
sity one anointment on the forehead with the short form¬ 
ula is sufficient, but the obligation of supplying the 
other anointments remains when the danger is over. 
The anointment of the loins is now always omitted. The 
anointment of the feet may be omitted for any reasonable 
cause. Except in case of grave necessity, the anoint¬ 
ments must be made by direct touch, without instruments. 

The use of an “instrument,” e. g., a brush, a piece of 
cotton or a little stick or twig ( stylus, virgula), may be 
allowed in contagious diseases, but aside from such cases 
of necessity, it is strictly forbidden. 

TITLE VI 

HOLY ORDERS 

(Can. 948-aon) 

It is the hieratic element, the power of order established 
by Christ himself, which distinguishes the clergy, who 
govern the faithful and conduct the divine worship, from 
the laity. To the clergy is entrusted the government and 
administration of the mystical and the real body of Christ, 
whereas the laity cannot validly perform any act of 
jurisdiction or order. This power is conferred by the 
Sacrament called Orders. 

1. The ordinary minister of the Sacrament of Orders 


THE SACRAMENTS 


114 

is the duly consecrated bishop; the extraordinary minister 
one who has obtained this power either by law or through 
a special indult of the Apostolic See. 

The lawful minister of ordination is the episcopus 
proprius, i. e., the candidate’s own bishop. This is es¬ 
tablished by the fact that the ordinand (1) was born 
and had his domicile, or (2) has only a domicile, though 
he was not born, in the diocese. In the latter case he 
must take an oath affirming his intention of remaining 
permanently in the diocese. 

2. The canonical titles of ordination are: benefice, pat¬ 
rimony, and pension. Supplementary titles are: the serv¬ 
ice of the diocese and the mission title for territories 
under the Propaganda. Regulars are ordained on the 
titulus professions; other religious on mensae communis. 

3. Qualifications of Candidates. —Although priests, and 
especially pastors, should interest themselves in boys 
who shows signs of an ecclesiastical vocation, keep them 
away, as much as possible, from worldly contagion, and 
foster the germ of piety (can. 1353), it is criminal, 
on the other hand, to compel any one, in whatever 
manner or for whatever reason, to embrace the clerical 
state, or to turn away from it any one who is canonically 
qualified. 

Seminaries are the proper place for aspirants to assure 
their vocation and prepare themselves for ordination. 

The legislator has set up certain conditions for the 
worthy and proper exercise of the sacred ministry. The 
lack of these are the so-called irregularities; they are not 
considered penal sanctions in the proper sense. Of these 
seven are said to spring from defect, and seven from 
crime. Besides, the Code has also introduced a class of 


HOLY ORDERS 


115 

qualifications which go by the term of canonical impedi¬ 
ments. 

A. Irregularities ex defectu are: 

i°. Illegitimate birth, no matter whether the illegit¬ 
imacy be public or occult, unless the subject has been 
legitimated or made solemn profession. 

2°. Bodily defects or deformities which prevent a man 
from properly performing the functions of the priest¬ 
hood. A greater defect is required to prohibit one from 
exercising an order already lawfully received, than for 
receiving a new order. Clerics suffering from a defect 
are not forbidden to perform those functions which they 
can properly perform. 

3 0 . Epilepsy, insanity and diabolical possession, past 
or present. 

4 0 . Bigamy resulting from two or more valid succes¬ 
sive marriages. 

5°. Infamia iaris. 

6°. The fact that one, as judge, has pronounced sen¬ 
tence of death. 

7°. The fact of having held the office of executioner 
or been an immediate helper of such. 

B. Irregularities ex delicto are: 

i°. Apostasy from the faith, heresy, and schism. 

2°. The fact of having allowed oneself to be bap¬ 
tized by a non-Catholic, except in a case of extreme neces¬ 
sity. 

3 0 . Attempted marriage, or marriage before the civil 
court, on the part of one who was bound by marital ties, 
by sacred orders, or by religious (even though only sim¬ 
ple or temporary) vows; also attempted marriage be¬ 
fore the civil court with a woman bound by the matri¬ 
monial tie or by a religious vow. 


n6 


THE SACRAMENTS 


4 °. Voluntary homicide or having procured the abor¬ 
tion of a human fetus, if these acts were effective; also 
cooperation in these crimes. 

5 °. Mutilation of oneself or others and attempted sui¬ 
cide. 

6 °. The practice of medicine or surgery by a cleric, 
if death resulted from the practice. 

7 °. The performance by those without an order of 
any act which is reserved to clerics in higher orders, or 
the exercise of an order duly received against a prohibi¬ 
tion either by canonical sentence or by a censure or vin¬ 
dictive penalty. These crimes do not produce irregular¬ 
ity, unless they are of the nature of a grievous sin com¬ 
mitted after Baptism, and external, either public or oc¬ 
cult. 

C. Simple canonical impediments are: 

i°. The married state. A man who has a wife can¬ 
not embrace the clerical state while his wife lives. 

2°. The fact of one’s parents being non-Catholics. 

3°. Being engaged in an office or administration for¬ 
bidden to clerics, and of which one has to render an ac¬ 
count, until he has given up the office and administration, 
settled his accounts, and thus become free. 

4 °. The state of being a slave, properly so-called. 

5 °. The duty of rendering common military service 
under the civil law, until one is fully discharged. 

6 °. Neophytes cannot be ordained until the bishop 
judges that their faith has been sufficiently tried. 

7 °. Another impediment is infamy (not by law, but) 
in fact, as long as this blemish remains on a person in 
the judgment of the Ordinary. 

Ignorance of irregularities and impediments does not 
excuse from incurring them. 

Confessors can absolve penitents in all occult cases of 


HOLY ORDERS 


ii 7 

a very urgent nature, when the Ordinary cannot be ap¬ 
proached and there is danger of great loss or infamy. 
But the dispensation is valid only in that it enables the 
penitent to exercise an order already received; homicide 
is exempted from this faculty. 

4. Publication of ordinations .—The names of candi¬ 
dates for ordination should be publicly announced in their 
respective parish churches. The Code re-inforces this 
rule for all aspirants to higher orders, with the exception 
of religious who take either simple or solemn vows. The 
church in which these publications are to be made is the 
parish church to which the candidate belongs by reason 
of domicile or quasi-domicile, on his own part or that 
of his parents. The time for these publications is the 
parochial service on some Sunday or holyday of obliga¬ 
tion, or any other day or hour when there is a large 
gathering of people. 

The Code enjoins upon all the faithful the obligation 
of revealing to the Ordinary or the pastor, before the 
day of ordination, any impediments they may be aware 
of. 

The Ordinary may ask the pastor who has made the 
publication, or, if he deems it expedient, any other 
person, to investigate the conduct and life of the can¬ 
didate by questioning trustworthy persons, and to 
transmit the testimonial letters containing the results 
of that investigation and publication to the diocesan 
court. 

5. Time for ordinations .—Episcopal consecration must 
be conferred during the solemnity of the Mass on a 
Sunday or on the feast of an Apostle. 

Higher orders should be conferred during holy Mass 
on the four Ember Saturdays, on Saturday “Sitientes,” 
before Passion Sunday, or on Holy Saturday. However, 


n8 


THE SACRAMENTS 


if there be a grave reason for so doing, the bishop may 
ordain to higher orders also on any Sunday or holyday 
of obligation. 

The tonsure may be given on any day and at any hour 
of the day, in the forenoon or in the afternoon. Minor 
Orders may be conferred on Sundays and weekdays 
which have a feast marked duplex in the diocesan calen¬ 
dar. 

The custom of ordaining on days other than those 
prescribed in the preceding sections is reprobated by 
the Code. These days must also be observed when a 
bishop of the Latin rite, in virtue of an Apostolic in- 
dult, ordains a clergyman of an Oriental rite, and con¬ 
versely. 

6 . Record of Ordinations .—Ordinations must be duly 
registered. This duty is especially incumbent on the dio¬ 
cesan court. In the case of the secular clergy the local 
Ordinary, and in the case of religious ordained with his 
dimissorials, the religious superior, must inform the pas¬ 
tor of the church in which the ordinand was baptized of 
his ordination to subdeaconship, in order that the fact 
may be recorded in the baptismal register. 

TITLE VII 

MATRIMONY 

(Can. 1012-1143) 

The subject-matter treated under this title not infre¬ 
quently proves a crux to pastors, and hence we need 
hardly apologize for offering a little more than the bare 
essentials of this important branch of pastoral occupa¬ 
tion. 


MATRIMONY 


119 


1. Essence, Object, and Species 

1. Jesus Christ Himself raised the marriage contract 
between baptized persons to the dignity of a Sacrament, 
and hence there can be no valid marriage between bap¬ 
tized persons which is not at the same time a Sacrament. 

If the baptism of the two contracting parties, no mat¬ 
ter in what creed it has been conferred, was valid, their 
marriage is a sacramental contract. Logically it must be 
maintained that the marriage of an unbaptized couple be¬ 
comes a Sacrament when they receive baptism, without 
renewing the consent. 

2. The primary end of marriage is the procreation and 
education of offspring, while its secondary purposes are 
mutual help and the allaying of concupiscence. 

The essential properties of marriage are unity and in¬ 
dissolubility, which obtain a special firmness or stability 
in Christian marriage by reason of its being a Sacrament. 
This firmness may be traced to the typical union be¬ 
tween Christ and His Church and also to the sacramental 
grace attached to Christian marriage. 

Since the law favors marriage, the presumption in case 
of doubt is always in favor of the validity of a marriage, 
until the contrary is proved. An exception to this rule 
is the Pauline Privilege, which enjoys the favor of faith. 

The marriage of baptized persons is governed not only 
by the divine law, but also by canon law, with due re¬ 
gard to the competency of the civil power concerning the 
merely civil effects of Matrimony. 

Notice that the Code stresses the marriage of baptized 
persons and leaves the marriage of unbaptized persons 
untouched. Who, then, is to regulate these latter unions? 
We can see but one competent authority: the State. To 


120 


THE SACRAMENTS 


it, therefore, must be vindicated legislative power con¬ 
cerning the marriages of non-baptized persons. Conse¬ 
quently, the State may surround these marriages with diri¬ 
ment impediments, provided these do not conflict with 
the natural or the divine law. It may demand that all 
marriages must be contracted in the presence of either 
the State authorities or of duly authorized ministers of 
religion. This is called optional or facultative • civil mar¬ 
riage and obtains in the United States. 

Finally attention must be drawn to the general term 
Baptizatorum matrimonium . All baptized persons fall 
under the legislative power of the Church, as the Council 
of Trent dogmatically defined. 14 The conclusion would 
seem to be that unless the legislator himself expressly 
exempts some one, as is done in can. 1099, § 2, all bap¬ 
tized persons are comprised by the law. Yet this is not 
the case, for can. 1070, concerning disparity of cult, leaves 
a doubt, which might have been cleared up by the addi¬ 
tion of a few words. We make this statement, not to 
criticize, but for practical reasons. 15 

3. The various kinds of marriage are thus defined by 
the Code: 

a) A valid marriage, contracted between baptized per¬ 
sons, is called ratified (ratum ) as long as it has not been 
consummated by conjugal intercourse; ratified and con¬ 
summated, if perfected by the conjugal act to which 
matrimony is by nature directed and by which the partners 
become one flesh. 

b) If the parties have lived together after the celebra¬ 
tion of marriage, consummation is presumed, until the 
contrary is proved. 

14 Sess. VII, can. 7, De Bapt. 

15 We have received several letters to that effect, and our 
answer was: solicit an authentic answer through your Bishop. 


BETROTHAL 


121 


c) A marriage validly contracted between unbaptized 
persons ( e . g., Mohammedans, Jews, Gentiles) is legiti¬ 
mate , but not sacramental. 

d) An invalid marriage is called feigned ( putatiimm ) 
if it was contracted in good faith by at least one party, 
until both become aware of its invalidity. 

Pastors are exhorted to instruct their people on mar¬ 
riage and its impediments. The Code does not say how 
often such instructions should be given or on what 
occasions. The instructions may be public or private. 

2. Betrothal 

A promise of marriage, made either by one party or 
by both, is void of effect, in the court of conscience as 
well as in the external forum, unless it is made in writing 
and signed by the parties themselves as well as by the 
parish priest, or the diocesan Ordinary, or at least two 
witnesses. 

In case one or both parties do not know how, or are un¬ 
able, to write it is required for validity that this fact be 
noted in the document and another witness added, who 
shall sign the document together with the pastor, or the 
Ordinary of the diocese, or the other witnesses. 

On a promise of marriage, even though it be valid and 
no just reason excuses, no action can be based to compel 
the celebration of the marriage. 

The Code has done away with the former diriment im¬ 
pediment of sponsalia, which no longer figures even as a 
prohibitive one. Although the impediment has been re¬ 
moved, and binding force is attached only to formal en¬ 
gagements, as just described, it does not follow that there 
is no obligation in conscience to keep an engagement, 
whether formal or informal. A person who violates even 


122 


THE SACRAMENTS 


an informal engagement without reason, is guilty of a 
breach of fidelity, decency, and honor, all of which re¬ 
quire that a man should perform what he has promised. 16 

A man who has damaged a young lady’s reputation by 
undue familiarity is bound in conscience to make restitu¬ 
tion, or if no remedy can heal the damage, to marry her. 
This obligation arises, not from the betrothal, but from 
the natural law, and has nothing to do with the form 
of the engagement. 

3. Preliminaries and Banns 

1. Before a marriage may be celebrated, certainty must 
be had as to whether there exists an obstacle to its valid¬ 
ity or licitness. 

When there is danger of death, and no other proof can 
be procured, and signs do not point to the contrary, the 
sworn statement of the parties that they are baptized 
and subject to no impediment will suffice to admit them 
to the celebration of marriage. 

Aside from the case of danger of death, there are tzvo 
kinds of investigation mentioned in the Code. One is 
informal or previous, designed to ascertain the existence 
of an obstacle or impediment to either a valid or a licit 
marriage; the other is called the bridal examination. 
Who is to conduct them? The pastor who is entitled to 
assist at a marriage shall, at a convenient time, carefully 
investigate whether there is an obstacle to the marriage 
to be contracted. He may delegate another, for instance, 
his assistant, to make this investigation; but the personal 
obligation remains, and negligence on the part of the 
delegate would recoil on the pastor. This inquiry should, 

16 J. A. McHugh, O. P., Preparation for Marriage, 1919, pp. 
19 ff. 


PRELIMINARIES TO MARRIAGE 


123 


as a rule, be conducted by the pastor of the bride, i. e., 
he (a) in whose parish the bride has a domicile or quasi¬ 
domicile or (b) one of the parties has lived for thirty 
days, or (c) if one of them is a vagrant. There is no 
strict obligation to institute such a previous inquiry if 
the parties are known to the pastor. But there is a seri¬ 
ous obligation to hold the bridal examination. This, too, 
is incumbent on the pastor who is entitled to assist at the 
marriage, but he may entrust another with it. The pas¬ 
tor, then, or his delegate, should question the bridegroom 
and the bride separately and cautiously as to the possible 
existence of an impediment, ascertain whether both, es¬ 
pecially the woman, freely consent to the marriage, and 
whether they are sufficiently instructed in Christian 
doctrine. The last question may be omitted where the 
character and standing of the parties render it super¬ 
fluous. 

This examination has two parts: the juridical and the 
doctrinal. 

a) Juridically it comprises the following questions: 

i°. Have you complied with the requirements of the 
civil law? in other words: Have you obtained a mar¬ 
riage license ? 17 

2 0 . What is your age? 

3 0 . Are you a Catholic? Are you baptized? Do you 
belong to a non-Catholic sect? 

4 0 . Are you bound by any vows or orders? 

5 0 . Are you a blood relative of your intended con¬ 
sort? 

6°. Have you been married before? Was the for¬ 
mer marriage dissolved and how? 

17 See McHugh, op. cit., p. 23. The pastor will also ask himself 
whether he himself is an American citizen, where the State re¬ 
quires this qualification under penalty or fine. 


124 


THE SACRAMENTS 


7 °. Was your former wife (or husband) a blood rela¬ 
tive of your intended wife (or husband) ? 

8 °. Have you ever administered Baptism or stood as 
sponsor ? 

9°. Are you related to your intended wife (or hus¬ 
band) by legal adoption? (This question is not neces¬ 
sary if the pastor knows that in his State adoption con¬ 
stitutes neither a diriment nor a prohibitive impediment 
to marriage.) 

io°. Have you agreed to be married of your own free 
will ? 

n°. A delicate question is that concerning crime. To 
put it leniently and yet precisely, a formula like this 
may be used: Have you known your intended bride 
(bridegroom) for a long time? Has any promise or 
improper relation forced you into this second marriage ? 18 

b) The doctrinal examination need be held only if the 
pastor is not certain as to the parties’ religious knowledge. 
If this is seriously deficient, it will be difficult to supply 
the lack in one instruction. If the parties “can or will 
not wait,” the pastor should briefly explain the properties 
of marriage, its unity and indissolubility, the mysteries 
of the Blessed Trinity and Incarnation, the Lord’s Prayer 
and “Hail Mary,” the acts of faith, hope and charity, 
and contrition. 

The pastor must demand a baptismal certificate from 
both parties, unless they were baptized in his own parish. 
If not already received, Confirmation should be admin¬ 
istered before marriage, provided it can be done conveni¬ 
ently. 

The local Ordinary should issue regulations to the 
pastors concerning the instruction of bridal couples. 

18 A question might also be asked concerning “Public Pro¬ 
priety,” if the parties are entirely unknown to the pastor. 


PROCLAMATION OF THE BANNS 125 


2. The parties’ own pastor must publicly announce 
their future marriage. The “banns” must be proclaimed 
for each and every marriage between Catholics, unless 
a dispensation has been obtained. Mixed marriages 
should, as a rule, not be publicly announced. Neither 
rural deans nor pastors enjoy the power of dispensing 
from one or two or all three “calls”; they may, at most, 
determine that under peculiarly pressing circumstances 
and in urgent cases this law does not bind. The power 
of dispensation in this matter belongs to the local Ordi¬ 
nary, who may, according to his discretion, dispense from 
the publication of the banns in his own diocese or in a 
strange diocese, provided there is a lawful reason. If the 
parties belong to different dioceses, the bishop in whose 
diocese the marriage is to be celebrated is entitled to 
dispense; if the marriage takes place in neither of the 
two dioceses, any Ordinary who is the “ordinarius pro- 
priiis” of either of the parties may dispense. 

If a party has lived in a place other than the parish of 
the parochus proprius for six months after the age of 
puberty, 19 the pastor shall report the matter to the Or¬ 
dinary, who may prudently order either the banns to be 
published in that place or else proofs or conjectures to 
be gathered which establish the party’s free status. 

If the pastor suspects the existence of an impediment, 
he should report to the Ordinary, even though the party 
has lived less than six months in the other place; and the 
Ordinary shall not give permission to marry until the 
suspicion has been removed by the means mentioned in 
the preceding paragraph. 

The banns are to be proclaimed in church on three 
successive Sundays or holydays of obligation during the 

19 Puberty is here to be taken according to can. 88, viz., four¬ 
teen and twelve years, respectively. 


126 


THE SACRAMENTS 


solemnity of the Mass or at other services frequented by 
the people. The Ordinary may, however, substitute for 
said publication the public posting of the names of the 
contracting parties at the doors of the parish church, or 
some other church; the announcement is to remain posted 
for eight days, including two holydays of obligation. 

After the examination and the publication of the banns 
the pastor shall not assist at the marriage until he has 
received all the necessary papers, and until at least three 
days have elapsed after the last call, unless a plausible 
reason dictates otherwise. Should a marriage be delayed 
for six months after the banns have been published, the 
publication must be repeated, unless the Ordinary de¬ 
cides otherwise. 

The necessary papers here mentioned are: the marriage 
license, the baptismal certificate, and authentic informa¬ 
tion regarding the status of the nupturients. The Code 
says that if another pastor has attended to the examina¬ 
tion of the candidates, or made the publications, he should 
“as soon as possible authentically inform the pastor who 
is to assist at the marriage of the results of his inquiry.” 

The publication of the banns is intended to ascertain 
the free status of the contracting parties, i. e., the non¬ 
existence of impediments to their marriage. Now it may 
happen (a) that a serious doubt arises concerning the 
existence of an impediment, or (b) that an impediment 
certainly exists, (a) If a doubt of a positive nature 
arises, the pastor shall investigate more thoroughly by 
querying at least two trustworthy witnesses (provided 
the impediment is not defamatory) and also the parties 
themselves,—under oath, if he deems it necessary, (b) 
If the existence of an impediment is certainly established, 
then, (a) if the impediment is secret, the pastor shall con¬ 
tinue or complete the publication of the banns and refer 


MARRIAGE IMPEDIMENTS 


127 


the matter, without naming the parties, either to the Or¬ 
dinary or to the S. Poenitentiaria; (/?) If the impedi¬ 
ment is public and is discovered before the publications 
are begun, the pastor shall not proceed further until the 
impediment is removed, even though he may know of a 
dispensation granted for the court of conscience. If 
a public impediment is discovered after the first or sec¬ 
ond publication of the banns, the pastor shall finish the 
publications and then report to the bishop. Finally, if 
no impediment is discovered, the pastor shall, after all 
the banns have been published, admit the parties to the 
celebration of marriage. 

Except in case of necessity, the pastor shall not assist 
at the marriage of vagi, unless he has previously referred 
the case to the Ordinary of the diocese, or to a priest 
delegated by the latter, and obtained his permission. 

The pastor shall gravely admonish minors not to marry 
without the knowledge or against the reasonable wishes 
of their parents. If they refuse to obey, he shall assist 
at the marriage only after having consulted the Ordi¬ 
nary of the diocese. 

4. Impediments in General 

By impediment is understood, in general, an obstacle 
that render a marriage either invalid or illicit. What 
we call a canonical impediment may be taken in a twofold 
sense: (a) strictly limited to ecclesiastical law, and then 
“canonical” impediments are only such as have been 
established by human authority, or the ecclesiastical 
law as human law; (b) taken in a wider sense, 
“canonical” comprises human and divine law, and, there¬ 
fore, “canonical” impediments, whether diriment or 
prohibitive, are such as are declared or established by 


128 


THE SACRAMENTS 


the ecclesiastical authority. For it should be remembered 
that the Church of God is endowed with the power, not 
indeed to establish, but to declare and interpret, the divine 
law, as she also is empowered to set up impediments of 
her own. 

The Code has reduced the number of impediments to 
12 (13) properly called invalidating, and six prohibitive 
ones. The number 13 set in brackets indicates that legal 
adoption is not a universal, but only particular, impedi¬ 
ment, depending on the civil law of the respective country. 

1. Marriage impediments are (a) either prohibitive 
(forbidding but not invalidating marriage), or diriment 
(invalidating marriage) ; (b) either public (when they 
can be proved in the external forum), or occult (when 
no proofs are available, though perhaps one or both 
parties know of it). Even when the impediment exists 
only on one side, it renders marriage illicit or invalid, on 
account of the individual character of the matrimonial 
contract. 

2. It belongs to the supreme power of the Church to 
declare authentically when the divine law forbids or in¬ 
validates a marriage and to establish, for persons bap¬ 
tized, prohibitive or invalidating impediments by way of 
universal or particular law. 

The Roman Pontiff alone can either totally or partially 
abolish impediments established by ecclesiastical law, 
whether prohibitive or diriment. He alone can dispense 
from matrimonial impediments, unless this power has 
been granted to another by the common law or by a papal 
indult. 

Customs tending to introduce a new impediment or to 
abrogate those in force, are expressly reprobated by the 
Code. 

The local Ordinary has the right to forbid a particular 


MARRIAGE IMPEDIMENTS 


129 


marriage or a marriage in a particular case. However, 
this forbidding decree, or vetitum ecclesiae, which the Or¬ 
dinary may, for a just cause, issue in some extraordinary 
instance, has no invalidating force. 

3. List of Impediments .—The Code distinguishes be¬ 
tween diriment impediments of a higher and a lower de¬ 
gree. They are here exhibited in order: 


MAJOR 

1. Age. 

2. Impotence. 

3. Ligamen or Marriage Bond. 

4. Disparity of Worship. 

5. Sacred Orders. 

6. Solemn Profession. 

7. Rape or Abduction. 

8. Crime with adultery and 
uno machinante —or with¬ 
out adultery but utroque 
machinante. 

9. Consanguinity in the whole 
direct line and in the first 
and second degrees of the 
collateral line. 

10. Affinity in the whole direct 
line and the first degree of 
the collateral line. 

11. Public honesty in the first 
degree. 

12. Legal adoption. 


MINOR 


1. Crime with adultery and 
promise of marriage. 

2. Consanguinity in the third 
degree of the collateral line. 

3. Affinity in the second de¬ 
gree of the collateral line. 

4. Public Honesty in the sec¬ 
ond degree. 

5. Spiritual Relationship. 


5. Dispe}isations from Impediments 

By law (can. 1040) the Pope alone can dispense from 
any impediment of ecclesiastical law. The Code does not 
explicitly state which impediments are of ecclesiastical 
and which are of divine-natural law; but the common 
teaching refers the following to ecclesiastical law: age; 


130 


THE SACRAMENTS 


orders; vow; rape*; crime; consanguinity in the collateral 
line from the second degree onward; affinity, at least 
from the second degree in the direct line and every de¬ 
gree of the collateral line; public propriety; spiritual 
relationship. 

Impediments of divine-natural law are these: impo¬ 
tence; the marriage bond; consanguinity in all degrees of 
the direct line; also disparity of worship and mixed re¬ 
ligion in cases where the faith of the Catholic party is 
in danger. However, since this is rather an ethico-dog- 
matical consequence of the impediment, we should say 
that both these impediments of disparity and mixed 
religion belong directly {in directo) to the impediments 
of ecclesiastical law, but indirectly {in obliquo) to the 
impediments of divine law. 

Of a disputed nature are the impediments arising from 
consanguinity in the first degree of the collateral line and 
from affinity in the first degree of the direct line. 

A doubt may also arise concerning adoption, because 
this is acknowledged by the Church as a prohibitive or 
diriment impediment wherever the civil government re¬ 
gards it as such. Can the Church dispense from this im¬ 
pediment? The answer, on general principles, should be 
affirmative, because legal adoption as an impediment is 
acknowledged as such only by canonical sanction, when 
both parties are baptized. Hence, since the Church sanc¬ 
tions this impediment as canonical (merely ecclesiastical), 
the supreme authority can dispense from it. Will the 
Church, in fact, dispense? We hardly believe so, at least 
not without consulting the State, or by mutual agree¬ 
ment, as, for instance, through a concordat . 20 

The Code also lays down the general rule that, although 

20 Also in case of a marriage of conscience, we believe, the 
Church would be compelled to dispense. 


MARRIAGE IMPEDIMENTS 


131 

dispensation from ecclesiastical impediments is reserved 
to the supreme power, yet either the law itself or a spe¬ 
cial indult may convey this power to others. 

The law, i.e., the Code itself (can. 1043), grants the 
right of dispensation: 

1. To the local Ordinaries, when one of the parties con¬ 
cerned is in danger of death, for the relief of conscience, 
and, if necessary, for the legitimation of children. 

This dispensation may, under the aforesaid circum¬ 
stance, be applied to all impediments of ecclesiastical law, 
diriment as well as impedient, public as well as occult, 
simple as well as multiplex, with the exception of the 
impediments of the priesthood and affinity in the direct 
line arising from a consummated marriage. It is, further¬ 
more, applicable to clandestinity, i. e., to marriages con¬ 
tracted without the prescribed form. 

The conditions are that, as far as it lies with the parties, 
the scandal must he removed in each and every case. 
This clause does not, however, affect the validity of the 
dispensation. Concerning disparity of worship and 
mixed religion the condition is and must be complied with, 
at least in the form of an oral promise. If the party 
should refuse to comply with this last-named demand, 
the Ordinary could neither validly nor licitly apply the 
dispensation (can. 84, § 1.). 

The local Ordinary can grant this dispensation to all 
his subjects, wherever they may be, and to all other per¬ 
sons actually residing within his territory. 

2. The law (can. 1044) grants the same power, just 
mentioned, to pastors and to all priests who are called 
upon to assist at a marriage in accordance with can. 1098, 
n. 2 (marriage in danger of death with the assistance of 
two witnesses), provided access to the Ordinary is im¬ 
possible ( solum pro casibus in quibus ne loci quidem Or - 


132 


THE SACRAMENTS 


dinarius adiri possit). This adiri must be taken in the 
sense of regular communication, either personal or epis¬ 
tolary. The pastor or priest is not obliged to try to reach 
the Ordinary by telegraph or telephone. 21 

3. The law also grants this power to confessors, pro¬ 
vided access to the local Ordinary is out of the question. 
But there is a further proviso: the confessor may make 
use of the power granted by law only in the court of con¬ 
science and in the act of sacramental confession. The 
pastor or priest should immediately inform the Ordinary 
of every dispensation granted in foro externo and also 
record the same in the matrimonial register. Of course, 
the validity of a dispensation does not depend on the 
fact of its being duly reported and recorded. 

4. The law (can. 1045) grants the right of dispensing 
in the casus perplexus as follows: Under the conditions 
laid down in can. 1043, if the impediment is discovered 
when everything is ready for the marriage, and the cere¬ 
mony cannot be delayed without the probable danger of 
a grave inconvenience until a dispensation is obtained 
from the Holy See, Ordinaries can dispense from all the 
impediments mentioned in the same canon. 

This faculty holds good also for the revalidation of a 
marriage already contracted, if delay is dangerous and 
there is no time to have recourse to the Holy See. 

21 This is now authentically interpreted by a decision of the 
Pont. Comm., Nov. 12, 1922 (A. Ap. S., XIV, 662 f.) : 

“Utrum in casibus, de qnibus in cc. 1044 et 1045, § 3, censendum 
sit Ordinarium adiri non posse, cum nec per litteras, nec per 
telegraphum nec per telephonum ad eum recurri potest; an etiam 
cum solum per literas impossibile est, licet per telegraphum vel 
telephonum id fieri possit. Resp. Negative ad am partem, affirmative 
ad 2 am , seu ad effectum, de quo in cc. 1044 et 1045, § 3, censendum 
esse Ordinarium adiri non posse, si non-nisi per telegraphum vel 
telephonum ad eum recurri possit.” 


MARRIAGE IMPEDIMENTS 


133 


In the same circumstances pastor , priest, and confessor, 
as mentioned in can. 1044, enjoy the same faculty, but are 
allowed to apply it only in occult cases which admit of no 
recourse to the local Ordinary, or when access to the 
Ordinary would entail danger of violating the se¬ 
cret. 

As to special indults of the Holy See, these are gen¬ 
erally given in the form of set faculties issued to Apos¬ 
tolic Delegates and to Ordinaries and prelates under the 
Propaganda. 22 


6. Rules for Dispensation 

1. A dispensation granted extra-sacramentally should 
be recorded in a special book to be kept in the diocesan 
archives. No new dispensation is necessary for the ex¬ 
ternal forum if an occult impediment afterwards be¬ 
comes public. On the other hand, a dispensation granted 
in the act of sacramental confession does not hold in the 
external forum , and, therefore, a new dispensation is re¬ 
quired if the impediment becomes public. 

2. The faculty of dispensing granted by a general in- 
dult extends to multiple impediments of diverse species. 
But if an impediment arises from which they cannot dis¬ 
pense, the Ordinaries must petition the Apostolic See. 
If, however, the impediment or impediments from which 
they can dispense are discovered only after petitioning the 
Holy See for a dispensation, they may make use of their 
faculties. 

3. All dispensations granted by a general indult 23 in- 

22 These faculties are not publici iuris, we were told in a letter 
from a Roman friend. 

23 We believe that Formulary III has the character of a general 
indult, although Ordinaries of other countries may receive a 
somewhat different formulary. 


134 


THE SACRAMENTS 


elude the legitimation of children, excepting only adulter¬ 
ine and sacrilegious offspring. 

4. A dispensation from the impediment of consanguin¬ 
ity or affinity, granted for a certain degree, is valid even 
though a mistake was made concerning the degree in the 
petition or concession, provided the actual degree is in¬ 
ferior to the one which was alleged. It is valid also 
though an impediment has been concealed in the petition, 
provided said impediment be of the same species and of 
an equal or inferior degree. 

5. A dispensation granted by the Holy See from mar¬ 
riage ratified and not consummated, or a permission given 
to marry again on account of the presumed death of the 
other spouse, always includes a dispensation from the 
impediment arising from adultery with promise of, or 
attempt at, marriage (by civil act), if there be need of 
such, but not from the other two impediments of crime 
(can. 1075, n. 2, 3). 

6. A dispensation granted from a minor impediment 
is not vitiated by the fact that a falsehood has been alleged 
or the truth suppressed in the petition, even though the 
sole final cause alleged be false. 

Canonical reasons for dispensation are: 

a) Angustia loci or smallness of the place or town 
(not parish). This reason can be alleged by a girl liv¬ 
ing in a place with less than 1500 inhabitants, because in 
such a small place it is difficult for a girl to find a hus¬ 
band of equal social standing. 

b) A etas feminae superadulta or relatively advanced 
age of the girl, i. e., if she is more than twenty-four years 
old. 

c) Deficientia aut incompetentia dotis, if a woman has 
no dowry or property, and a relative would marry or 
endow her under certain conditions. 


MARRIAGE IMPEDIMENTS 


135 


d) Lites super successione bonorum iam extortae vel 
earundem grave ant imminens periculum, which would be 
the case if a quarrel could be settled by a marriage 
between relatives, or if the husband in spe were the only 
man who could settle a lawsuit concerning property or 
inheritance. 

e) Paupertas viduae, poverty of a widow, especially if 
she has many children. 

f) Bonum pads, if it is possible by a marriage to 
settle family or feudal quarrels and remove long-stand¬ 
ing enmities. 

g) Nimia suspect a periculosa familiaritas, too long 
courtship and great intimacy apt to cause suspicion or 
scandal. 

h) Copula cum consanguinea, praegnantia ideoque 
legitimatio p-rolis, which requires marriage in order that 
the damage be repaired and disgrace averted. 

i) Infamia mulieris, ill-fame of the woman, caused by 
the fact mentioned under n. 7, even though she be inno¬ 
cent. 

j) Revalidatio matrimonii, if a marriage has been 
contracted according to the prescribed form and in good 
faith. 

k) Periculum matrimonii mixti vel coram acatholico 
ministro, danger of a mixed marriage, which is present 
especially in small congregations and in communities with 
a preponderantly non-Catholic population. 

l ) Periculum inccstuosi concubinatus, when near 
relatives live under the same roof and in imminent dan¬ 
ger of concubinage. 

m) Periculum matrimonii civilis, danger of a civil 
marriage if a dispensation be denied. 

n) Remotio gravium scandalorum et ccssatio publici 
concubinatus; serious scandal and cessation of public con- 


136 


THE SACRAMENTS 


cubinage are generally connected, and here supposed to 
be existing. 

o) Excellentia meritorum, if one has deserved well 
of the Catholic faith by combating its enemies in word or 
writing, or by generosity, or conspicuous learning and 
virtue. 

7. The executor of a rescript of dispensation is, as a 
rule, the local Ordinary of the petitioner, because he gen¬ 
erally sends the petition and receives the dispensation. 
And the local Ordinary may execute the dispensation 
even though the petitioners ( sponsi ) have given up their 
domicile or quasi-domicile in his diocese at the time the 
dispensation is to be used, and have gone to another di¬ 
ocese with the intention of not returning. The Ordinary 
who executes the rescript should inform the Ordinary in 
whose diocese the wedding takes place. 

8. With the exception of a moderate fee for the ex¬ 
penses of the chancery, the local Ordinaries or their of¬ 
ficials are not allowed to charge anything for dispensa¬ 
tions, unless the Holy See has expressly granted them 
permission to make a charge. Every contrary custom is 
reprobated. If a charge is made without permission, the 
officials are bound to restitution. 

9. Those who grant dispensations in virtue of dele¬ 
gated power from the Apostolic See must mention the 
papal indult when they make use of it. 

7. Prohibitive Impediments 

The prohibitive impediments are the following: The 
simple vow (a) of virginity, (b) of perfect chastity, (c) 
not to marry, (d) to receive sacred orders, (e) to enter 
the religious state, (f) legal adoption where it is accepted 
by the civil law, and (g) mixed marriage. 


MARRIAGE IMPEDIMENTS 


137 


The most important and serious impediment is that of 
mixed marriage', that is to say, when one party is a bap¬ 
tized Catholic, while the other party is a baptized member 
of another denomination. 

1. The Church severely forbids marriages between two 
baptized persons, one of whom is a Catholic and the 
other a member of a heretical or schismatic sect; if there 
is danger of perversion for the Catholic party or the 
offspring, such a union is forbidden also by divine law. 

2. The conditions for dispensing from this impediment 
are: (a) that there be just and weighty reasons; (b) that 
the non-Catholic party guarantee to remove the danger 
of perversion from the Catholic party, and both promise 
to have all their children baptized and educated in the 
Catholic faith; (c) that there be a moral certainty that the 
promises will be kept. 

The promise must, as a rule, be given in writing. 

The Catholic consort is bound prudently to procure 
the conversion of the non-Catholic party. This obliga¬ 
tion is based upon charity. It should be fulfilled “pru¬ 
dently,says the Code, hence not by force or threats. 

3. Even when a dispensation from the impediment of 
mixed religion has been granted, the parties cannot, 
either before or after their marriage before the priest, 
go, whether in person or by proxy, to a non-Catholic 
minister in the exercise of his office, for the purpose of 
giving or renewing the matrimonial consent. 

If the pastor knows for certain that the parties are 
going to violate or have violated this law, he should not 
assist at their marriage, except for very weighty reasons, 
all danger of scandal being removed and the Ordinary 
having been consulted. 

The parties are not, however, forbidden to present 
themselves before a non-Catholic minister who acts as a 


138 


THE SACRAMENTS 


civil magistrate, when the civil law requires it, solely to 
comply with a legal formality and for the sake of civil 
effects. 

4. Ordinaries and other pastors of souls shall: 

i°. Deter the faithful as much as they can from con¬ 
tracting mixed marriages; 

2 0 . If they cannot prevent them, they shall take the 
greatest possible care that such marriages are celebrated 
according to the laws of God and the Church; 

3 0 . After such a marriage has been contracted, either 
in their own territory or outside of it, they shall watch 
over the faithful fulfillment of the promises made. 

5. The faithful should be deterred from marrying those 
who have notoriously renounced the Catholic faith, with¬ 
out, however, joining a non-Catholic sect, or those 
who are notoriously affiliated with societies condemned 
by the Church. The pastor shall not assist at such mar¬ 
riages, except after consulting the Ordinary, who, upon 
due consideration of all the circumstances of the case, 
may permit the pastor to assist, provided there is a 
weighty reason and sufficient provision is made for the 
Catholic education of all the children. 

6. If public sinners or persons notoriously under cen¬ 
sure wish to get married, and refuse to go to confession 
or to be reconciled to the Church before the marriage, the 
pastor is not allowed to assist thereat, except for grave 
and urgent reasons, concerning which he shall, if possible, 
consult the Ordinary. 

7. Since a marriage contracted against the prohibition 
of the Church is merely illicit, but not invalid, cases may 
arise which require straightening. How is that to be done ? 

First let it be noted that the case of a merely illicit 
marriage is comparatively rare. A marriage not con¬ 
tracted in the presence of the pastor (priest) and two 


MARRIAGE IMPEDIMENTS 


139 


witnesses is not merely illicit, but also invalid. If it is 
contracted properly, no unlawfulness attaches to it. 
However, it may happen, through ignorance on the part 
of the pastor, or by surprise, or in consequence of stub¬ 
born refusal of the two conditions or promises, that a 
marriage is contracted in the prescribed form, but with¬ 
out a dispensation, and therefore unlawfully. In that 
case the mode of procedure would be the following: 

(1) If the parties were married in church, and not be¬ 
fore a non-Catholic minister, as such (qua sacris ad- 
dictus), the pastor shall instruct them concerning the sin 
they have committed and the strict obligation of comply¬ 
ing with the required conditions, especially that concern¬ 
ing the Catholic education of their offspring, and assure 
them that any contrary promises are not binding, because 
unjust. If they acknowledge the wrong they have done, 
and show signs of repentance, they may be admitted to 
the Sacraments, with the imposition of a wholesome pen¬ 
ance. And this is all that may or should be done in such 
a case; for the marriage is valid, and the dispensation 
cannot affect its lawfulness after it has been contracted. 

(2) If the parties have been married in church, but 
have presented themselves before a non-Catholic minister, 
as such (can. 1063), the Catholic party has incurred the 
excommunicatio latae sententiae, reserved by law (can. 
233:9, § 1, n. 1) to the Ordinary. This is the only cen¬ 
sure, none other being mentioned in the Code. The way 
a pastor must proceed is as follows: (a) He must seek 
to persuade the Catholic party to repent of his or her 
fault and deny him or her the Sacraments until he or she 
does so; (b) If there are signs of repentance, he must de¬ 
mand the two promises, as a rule in writing; (c) If these 
promises are sincerely made, he shall apply the faculty 
of absolving from the episcopal censure, or procure the 


140 


THE SACRAMENTS 


same if he does not yet enjoy it, and impose a whole¬ 
some penance. No renewal of consent is required. 

If a public penance is prescribed by the diocesan stat¬ 
utes or a special injunction of the Ordinary, to repair 
the scandal given, the pastor is not at liberty to remit 
it. Nothing else is to be done, because the marriage is 
supposed to be valid. 

(3) If the marriage is invalid because of lack of the 
prescribed form —vitio elandestinitatis —the pastor must 
refuse the Catholic party the Sacraments until he or she 
repents and makes the two promises, and then obtain a 
dispensation. Should the parties have given their con¬ 
sent before a non-Catholic minister, the censure must 
also be removed. In that case the procedure would be 
as follows: (a) The litterae reversales or the two prom¬ 
ises must be agreed to, either in writing or orally; (b) 
Absolution from censure must be given; (c) A dispen¬ 
sation from the impediment of mixed religion must be 
obtained and applied; (d) The matrimonial consent must 
be renewed in the presence of the pastor and two wit¬ 
nesses. 


8. Diriment Impediments 

The Code describes the twelve (thirteen) diriment 
impediments as follows: 

1. Age .—A boy cannot validly contract marriage be¬ 
fore he has completed his sixteenth, and a girl before 
she has completed her fourteenth year. Although mar¬ 
riage contracted after the aforesaid age is valid, pastors 
of souls should deter from it young people who have not 
yet reached the age at which, according to the custom of 
the country, marriage is usually contracted. 

2. Impotency .—Anterior and perpetual impotency, 


MARRIAGE IMPEDIMENTS 


141 

whether in man or woman, whether known to the other 
party or not, whether absolute or relative, renders mar¬ 
riage invalid by the very law of nature. If the impedi¬ 
ment is doubtful, be the doubt one of fact or of law, 
marriage should not be hindered. 

Sterility does not render marriage either invalid or 
illicit. Here it may be well to add that particular de¬ 
cisions concerning particular cases cannot be construed 
into general rules. 

3. Marriage bond .—Those bound by the bond of a 
former marriage, even though it was not consummated, 
attempt marriage invalidly, unless they can claim the 
privilege of the faith. 

Although the previous marriage is invalid or for some 
reason was dissolved, it is not lawful to contract another 
before the nullity or dissolution of the first has been 
legally and certainly established. 

The method of legally proving the death of a person 
is as follows: 

(1) If possible, an authentic document must be ob¬ 
tained from the records of the parish or hospital or 
asylum or military department, or from civil authority. 

(2) If no such document can be obtained, two wit¬ 
nesses may be admitted. These must be trustworthy per¬ 
sons and testify under oath. They must have known 
the person whose death they attest, and their testimony 
must agree as to the place, the cause, and the essential 
circumstances of the death. 

(3) If two witnesses cannot be produced, one will 
suffice, provided he was acquainted with the party and 
the circumstances of the death, and nothing unsuitable or 
unlikely is found in his deposition. These witnesses may 
also testify from hearsay, provided their testimony agrees 
with circumstances known from other sources, and pro- 


142 


THE SACRAMENTS 


vided their information has come from direct witnesses. 

(4) If no witnesses are available, the judge may re¬ 
sort to circumstantial evidence, which is furnished by 
conjectures, presumptions, and circumstances that pre¬ 
ceded, accompanied, and followed the supposed death. 
Examples are furnished by military companions, espe¬ 
cially officers, or by the companions and circumstances of 
a voyage either on land or sea; whether the person in 
question traveled alone or in company, for what purpose, 
which was his route and destiny, whether a wreck took 
place, etc. 

(5) Rumor may be admitted if other proofs are want¬ 
ing. A rumor must be established by two trustworthy 
witnesses who testify under oath to its reasonableness 
as also to the general opinion of the people and their own 
conviction. 

(6) Finally, a newspaper advertisement may effect the 
desired result, especially if the manager is furnished with 
the necessary information. 

4. Disparity of worship .—A marriage is null when 
contracted by a non-baptized person with a person bap¬ 
tized in, or converted to, the Catholic Church from heresy 
or schism. 

If the party, at the time of the marriage contract, was 
commonly held to have been baptized, or if his or her 
baptism was doubtful, the marriage must be regarded 
as valid in accordance with can. 1014, until it is proved 
with certainty that one party was baptized and the other 
was not. 

The rules laid down for mixed marriages must be ap¬ 
plied also to marriages to which there is the impediment 
of disparity of worship. 

What about doubtful Baptismf The Holy Office has 
more than once declared that a doubtful Baptism must 


MARRIAGE IMPEDIMENTS 


143 


be considered valid in respect of marriage. The rules 
to be followed in such cases are the following: 

a) If the ritual of the sect to which the person belonged 
prescribes Baptism, but without the required matter and 
form, each case must be treated singly and on its own 
merits. 

b) If the respective sect baptizes validly, according to 
its ritual, the Baptism is to be considered valid. If there 
is room for doubt, even in the first mentioned case, the 
Baptism must be regarded as valid in reference to mar¬ 
riage. 

c) If it is evident from actual custom that Baptism in 
a sect is invalid, then marriage, too, is invalid if con¬ 
tracted between one thus invalidly baptized and a 
Catholic, because of the impediment of disparity of 
cult. 

Of special interest for our country is the answer of 
the Holy Office to the Bishop of Savannah. Its first 
point is merely a reaffirmation of the principle stated 
above, namely, that the presumption is in favor of the 
validity of Baptism in respect of marriage. But the 
bishop wished to know further when the presumption of 
validity may be duly applied. The answer was: (a) 
If the parents belong to a sect which rejects Baptism, 
the latter is not to be presumed; (b) The same holds good 
if the sect rejects infant Baptism (as, e.g., the Baptists 
do) ; (c) Also if the parents belong to no sect whatever, 
but are absolutely indifferent in religious matters. If, 
on the other hand, the parents belong to a sect that re¬ 
quires and generally administers Baptism, and if they 
were zealous in the practice of their religion, Baptism 
may be presumed. If only one of the parents belongs 
to a sect that prescribes and administers Baptism, and 
this one, whether father or mother, was the chief edu- 


144 


THE SACRAMENTS 


cator of the party in question, Baptism is to be presumed, 
provided the other parent, who was less zealous in re¬ 
ligious observance, did not positively object to it. If 
no presumption is admissible, the case must be examined 
for itself and, if the doubt remains, reported to the 
Holy See. 

5. Sacred Orders .—A marriage is invalid when at¬ 
tempted by clerics in major orders, i. e., from subdeacon 
up. 

6. Religious profession .—Marriage is null also if at¬ 
tempted by religious who have taken solemn vows, or 
simple vows that have the force of invalidating marriage 
by a special disposition of the Holy See. 

7. Abduction or rape .—Between the abductor and the 
women whom he has abducted with a view to marriage, 
there can be no (valid) marriage as long as she remains 
in the power of the abductor. 

If the abducted woman, after being separated from 
the abductor and taken to a place of safety, consents to 
have him for a husband, the impediment ceases. 

As far as the nullity of marriage is concerned, the 
forcible detention of a woman is equivalent to abduction 
when a man violently detains her with a view to mar¬ 
riage, in the place where she dwells or to which she has 
repaired of her own accord. 

8. Crime .—There can be no valid marriage between: 

i°. Those who, during the same legitimate marriage, 

have committed adultery with and promised marriage 
to each other or attempted it, even by a merely civil act 
(promissio cum adidterio). 

2°. Those who, during the same legitimate marriage, 
have committed adultery together and one of them con- 
jugicide (uno machinante et adulterio). 

3 0 . Those who, even without adultery, have caused the 


MARRIAGE IMPEDIMENTS 


145 

death, of a partner by mutual cooperation, either physical 
or moral ( utroque machinante absque adulterio ). 

9. Consanguinity. —In the direct line consanguinity in¬ 
validates marriage between all ascendants and descend¬ 
ants, whether legitimate or natural. 

a) According to can. 96, consanguinity is reckoned by 
lines and degrees. A line is simply the series of persons 
descended from the same stock. The degree is deter¬ 
mined by the number of generations or persons forming 
the line. The line has been likened to a ladder,—the 
original image of ancestry,—which contains two sides 
and a more or less well defined number of degrees. The 
line may be direct or indirect, i. e., collateral. The former 
exists between persons of whom one is descended in a 
direct line from the other, either upwards in the direct 
ascending line, or downwards in the direct descending 
line. Add now the degree or measure of distance in the 
relationship of one person to the other, and recall can. 96, 
§ 1 : “In the direct line there are as many degrees as 
there are generations, or as there are persons, not count¬ 
ing the common stock.” 

(b) In the collateral line Matrimony is invalid to the 
third degree inclusive, in such a way, however, that the 
impediment is multiplied as often as the common stock is 
multiplied. 

The degrees are reckoned thus: if both sides of the 
line are equal, there are as many degrees as there are 
generations on one side; if they are unequal, there are as 
many degrees as there are generations on the longer 
side. 

Matrimony is never permitted when there is a doubt 
whether the parties are related to one another in some 
degree of the direct line or in the first degree of the 
collateral line. 


146 


THE SACRAMENTS 


10. Affinity. —Affinity in the direct line annuls marriage 
in any degree; in the collateral line it annuls it to the sec¬ 
ond degree inclusively. 

The extent of affinity, according to can. 97, is as fol¬ 
lows : It exists only between the man and the blood 
relations of the woman, and likewise between the woman 
and the blood relations of the man. It is reckoned in this 
wise, that blood relations of the man are related to the 
woman by affinity in the same line and the same degree, 
and vice versa. 

A multiplication of this impediment takes place as 
often as the impediment of consanguinity, from which 
it originates, is multiplied; also by repeated marriages 
with blood relations of the deceased consort. 

11. Public Propriety. —The impediment of public pro¬ 
priety (or decency) arises from an invalid marriage, 
whether consummated or not, and from public or notori¬ 
ous concubinage; and it annuls marriage in the first and 
second degree of the direct line between the man and 
the blood relations of the woman, and vice versa. 

12. Spiritual relationship is contracted: (1) Between 
the baptizing minister and the baptized person; (2) Be¬ 
tween the sponsor and the person baptized. 

13. Legal Adoption. —Those whom the civil law con¬ 
siders incapable of contracting marriage with each other 
on account of the legal relationship arising from adop¬ 
tion, are incapable of contracting marriage validly also 
under the canon law. 

9. The Matrimonial Consent 

Under this heading the Code treats, not only of the 
qualities of the matrimonial consent in the strict sense, 
but also of such conditions as may affect the consent and 
were formerly classed with impediments. 


THE MATRIMONIAL CONSENT 


147 


1. The matrimonial consent—which alone, without the 
copula, suffices to render a marriage complete,—is an act 
of the will by which the parties deliver and accept the 
exclusive and perpetual right to each other’s body for 
the purpose or performing acts apt for the procreation 
of children. 

In order that matrimonial consent be possible, it is 
necessary that the contracting parties be aware 
that marriage is a permanent union between man and 
woman for the purpose of begetting children. Ignorance 
of this fact is not presumed in those who have reached 
puberty. 

The persons who give the consent must be lure habiles, 
that is to say, not prevented by law from giving the matri¬ 
monial consent. For instance, one bound by a marriage 
bond is hire inhabilis, that is, he cannot give his consent 
to another woman. If he does so, it is not a matrimonial 
consent, because the divine (if not the natural) law pre¬ 
vents him from making the consent a matrimonial one, 
as the object is wanting. 

Knowledge or belief that the marriage will be void 
does not necessarily exclude matrimonial consent. 

The internal consent of the will is always presumed to 
correspond to the words or signs used in the celebration 
of marriage. 

If one or both parties, by a positive act of the will, 
would exclude marriage itself or the right to the conjugal 
act, or an essential property or marriage, the contract 
would be null and void. 

To contract a valid marriage the parties must be pres¬ 
ent, either personally or by proxy; they must, if they 
are able to speak, express the matrimonial consent by 
words, and are not allowed to use signs. 

A marriage may be contracted by proxy or through an 


148 


THE SACRAMENTS 


interpreter. But the pastor shall not assist at such a 
marriage, unless there is a just cause and no doubt exists 
concerning the genuineness of the mandate or the trust¬ 
worthiness of the interpreter; if time permits, the Or¬ 
dinary^ permission should be obtained. 

Although a marriage is invalid because of an impedi¬ 
ment, the consent once given is presumed to continue 
until it is revoked. 

2. Error, or the state of mind in which one mistakes 
one thing or person for another, renders marriage invalid 
in three cases: (a) if the error concerns the person, 
as when James mistakenly marries Gemma, whereas his 
real intention was to marry Nelly; (b) if a free person 
marries a slave, supposing him to be free; slavery must 
here be taken in the strict sense, not as mere serfdom, 
or dependence, or subjection; (c) if the error, though ac¬ 
cidental or directed to a quality, concerns a person in 
such a way that it amounts to an error about the person, 
as, for instance, when one is so firmly determined to 
marry the eldest daughter of a wealthy man that he 
would not consider any other daughter of the same man. 

Otherwise an error about the qualities of a person, 
whether rich, poor, healthy, pretty, etc., never renders a 
marriage invalid. Neither does a simple error as to the 
unity, indissolubility, or sacramental character of mar¬ 
riage, even if it be the cause of the contract, vitiate the 
matrimonial consent. Note the term “simple error,” 
which is a purely mental state, although the will may 
also be influenced. 

3. Different, however, must be the verdict when a con¬ 
dition is attached. For 

a) If a condition concerns the future and is against 
the substance of marriage , it renders the marriage in¬ 
valid. The Schoolmen expressed this truth thus: A 


THE MATRIMONIAL CONSENT 


149 

condition that is against the substance of marriage, viti¬ 
ates the latter, but not the condition itself. 

b) When a condition ha»s been made and not with¬ 
drawn, if it concerns the future and is necessary, or 
impossible, or dishonest, but not contrary to the sub¬ 
stance of marriage, it must be regarded as non-existing. 

c) If a condition attached to the consent and not 
withdrawn concerns the future and is lawful, it suspends 
the validity of the marriage until the condition can be 
verified. If, for instance, one would set up this condi¬ 
tion: ‘Til marry you if I shall be elected to Congress,” 
or “if you bring me a dowry of $10,000,” it would con¬ 
cern the future and be licit, but unless the stipulation 
were mutual, formal, and lasting, the marriage would not 
on that account be declared invalid, nor would it be con¬ 
ditional. 

d) If the stipulated condition concerns the past or 
present, the marriage is either valid or invalid according 
to the verification or non-verification of the condition. 
Thus, if one would marry a woman on condition that 
she were a virgin, the marriage would be objectively valid 
if the woman really were a virgin, but the marriage rights 
could not be made use of until the condition was ascer¬ 
tained. 

The trouble with “conditional consent” consists in the 
fact that it cannot easily be proved in the external forum. 
Therefore, unless an authentic document or two trust¬ 
worthy witnesses testify to a condition, the matrimonial 
court will pronounce in favor of validity. 

4. Violence and fear may also influence the matri¬ 
monial consent. Therefore a marriage is invalid when it 
is entered into because of violence or grave fear, unjustly 
caused by an external agent, and there is no alternative 
but marriage. 


THE SACRAMENTS 


150 

No other fear, even though it was the cause of the con¬ 
tract, entails the nullity of a marriage. 

10. Form of Celebrating Marriage 

Although the matrimonial consent duly given to each 
other by capable persons suffices, per se, to constitute 
marriage, yet positive law is entitled, to safeguard a public 
institution such as Matrimony, to declare how the con¬ 
sent must be manifested; in other words, the legitimate 
power has a right to surround the marriage consent with 
certain formalities. This practice was in vogue from 
ancient times both in and outside the Church. 

Later ecclesiastical legislation may be divided, for prac¬ 
tical purposes, into three stages, which we designate as 
the “Tametsi,” the “Ne temere,” and the Code periods. 

a) The (( Tametsi period lasted from the Council of 
Trent (1563) to 1908. It is characterized by a lack of 
uniformity in discipline. In the United States the Tam - 
etsi was supposed to have been published, but to affect 
only strictly Catholic marriages in the province of New 
Orleans, in the province of San Francisco (together with 
the territory of Utah, except that part which lies east of 
the Colorado River, in the province of Santa Fe, except 
the northern part of Colorado), in the diocese of Vin¬ 
cennes, in the city of St. Louis and the parishes of St. 
Genevieve, Florissant, and St. Charles of the same arch¬ 
diocese, in Kaskaskia, Cahokia, French Village, and 
Prairie du Rocher, all now situated in the diocese of 
Belleville. In some parts of the U. S. neither Catholics 
nor non-Catholics were bound by the Tridentine decree. 
Thus the following ecclesiastical provinces were exempt: 
Baltimore, Philadelphia, New York, Boston, Oregon, 
Milwaukee, Cincinnati (except the diocese of Vincennes), 


FORM OF CELEBRATING MARRIAGE 151 


St. Louis (except the city itself and the places mentioned 
above), and Chicago (with the exception of the places 
mentioned in the Belleville diocese). To this exempt 
territory also belonged: England, Scotland, Denmark, 
Norway, several German provinces, Greece, Russia, 
Turkey, Japan, and China. The main points of this 
decree were:—the parochus proprius 24 and the two wit¬ 
nesses. 

b) The “Ne temere period” commenced April 19, 
1908, though the decree had been promulgated Aug. 2, 
1907. From this time onward each and every marriage 
in every part of the world, with the exception of the 
German Empire and Hungary, had to be contracted as 
the Code now rules. 

c) The Code, which went into effect May 19, 1918, 
i. e,, ten years after the above-named decree, abolished 
the local exceptions and made the law with regard to 
the form of marriage universal. These dates are set 
down here, not to encumber the memory, but for a prac¬ 
tical purpose, which will be easily understood, especially 
by court officials. 


Valid Assistance 

1. Now only such marriages are valid as are contracted 
before the pastor, or the Ordinary of the diocese, or 
a priest delegated by either the pastor or the Or¬ 
dinary, and at least two witnesses. The pastor and the 
Ordinary may validly assist at marriages: 

1°. Only from the day they have taken canonical pos- 

24 There is little, or no, weight to be attached to the attempt to 
prove that all the canonists were mistaken in stressing this 
condition. What about the Roman Court? Was it also in 
error ? 


152 


THE SACRAMENTS 


session of their benefice, or entered upon their office, 
provided they are not excommunicated, or interdicted, or 
suspended from office by a judiciary sentence, or de¬ 
clared suspended, interdicted, or excommunicated. 

2°. Only within the boundaries of their respective ter¬ 
ritory, in which, however, they may validly assist at mar¬ 
riages not only of their own subjects, but also of others. 

3°. Provided they are not compelled by violence or 
grave fear to ask and receive the consent of the parties. 

Besides the pastor, there are others who certainly meet 
the requirements of the Code, viz.: (i) those mentioned 
in can. 451, § 2, n. 2, as taking the place of a pastor with 
full pastoral powers, i. e., actual pastors of an incorpo¬ 
rated parish or chapter; (2) the oeconomi or parochial 
administrators appointed by the bishop during the va¬ 
cancy of a parish; (3) Substitutes who take the place of 
pastors during vacation or a sudden absence, unless the 
bishop or pastor excepts assistance at marriages; and (4) 
parochial coadjutors or assistants given to a disabled 
priest, if they take the place of the disabled pastor in all 
things. 

This interpretation, printed in Vol. V of our Com¬ 
mentary, p. 273, has been fully corroborated by the Pon¬ 
tifical Commission for the Authentic Interpretation of 
the Code. 25 

The Code does not explicitly state anything concern¬ 
ing the witnesses, and hence the former practice must 
be observed. The witnesses must be present simultane¬ 
ously with the minister, and both at the same time. 
Therefore, if they would be in the vestibule or sacristy 
of the church, from where they could neither hear the 
words nor see the ceremony, they could not be styled 


25 July 14, 1922 (A. Ap. S., XIV, 527). 


FORM OF CELEBRATING MARRIAGE 153 


witnesses, even though they had been called for that 
purpose. 

A distinction must be drawn between valid and licit 
assistance. 

Valid assistance can be rendered by all persons of 
either sex who are physically and mentally able to realize 
the meaning of the marriage contract. Non-Catholics, 
pagans, and infidels are not excluded. But licit assistance 
at Catholic marriages can be rendered only by Catholics, 
unless the Ordinary, for grave reasons, permits as¬ 
sistance by non-Catholics, and provided no scandal is 
given. 

With regard to the admission of Freemasons we could 
find no positive prohibition. However, it appears certain 
that at least prominent Masons are not easily to be ad¬ 
mitted, on account of the scandal that might arise to 
Catholics. But the Ordinary may judge differently. 

The reason why non-Catholics should be, and, as a rule, 
are excluded from being witnesses, is the prohibition of 
passive assistance at Catholic rites ( communicatio in di- 
vims passiva). 

Here a remark may be pertinent as to Catholic wit¬ 
nesses at non-Catholic marriages. If the wedding is per¬ 
formed in the presence of a non-Catholic minister, qua 
minister ( sacris addictus), the Catholic party is guilty 
of violating the law of the Church which forbids active 
communication in the religious rites of a non-Catholic de¬ 
nomination. But if the minister acts only as a public 
magistrate, the ceremony bears the character of a purely 
civil rite, which cannot be called strictly sacred, and there¬ 
fore participation is not forbidden. This applies also, 
and a fortiori, if a lay justice of the peace performs the 
civil act. 


154 


THE SACRAMENTS 


We may also call attention to can. 2316, where com - 
municatio in divinis with heretics is said to induce the 
suspicion of heresy. 26 

2. Delegation for valid assistance. 

The pastor and the Ordinary of the diocese, who can 
validly assist at marriages, may also grant permission 
to another priest to assist validly within the limits of 
their respective districts. 

This permission, however, must be granted to a sped - 
fied priest for a specified inarriage. General delegations 
are excluded, except in case of assistant coadjutors for 
the parish to which they are appointed; in all other cases 
general delegation is invalid. 

The pastor or Ordinary of the diocese shall not grant 
such a permission unless he has complied with the regu¬ 
lations of the law for establishing the free status of the 
nupturients. 

Presumed delegation, therefore, as well as general dele¬ 
gation, is excluded. An exception to this rule is made in 
favor of curates or assistant priests , who may receive 
a general delegation and may assist validly at any 
marriage, within the boundaries of their parish, unless 
the pastor, or the letter of appointment, expressly reserve 
this right to the pastor. 

The delegation must be given for a specified marriage, 
which means that it is directed to certain, particular mar¬ 
riages. The Ordinary, bishop or vicar-general, may dele¬ 
gate a priest—not a deacon or subdeacon—to assist at 
specified marriages in any parish of the diocese. 

3. The requisites for licit assistance are thus deter¬ 
mined by the Code. The pastor or the Ordinary of the 
diocese assist at a marriage licitly : 

26 See Vol. VI, p. I92ff. and Vol. VIII; p. 287 f., of our Com¬ 
mentary. 


FORM OF CELEBRATING MARRIAGE 155 

a) After having ascertained the free status of the 
contracting parties, as the Code prescribes (especially 
in can. 1029-1031) and after the publications of the 
banns have been made or dispensed from; 

b) After having ascertained the fact of domicile, or 
quasi-domicile, or monthly stay of at least one of the 
parties in the place where the marriage is to take place, 
or of actual stay in the case of vagi. 

If the conditions set down under a) are not verified, 
the pastor or Ordinary, in order to assist lawfully at a 
marriage, must have the permission of the pastor or Or¬ 
dinary of the place where one of the contracting parties 
has a domicile, or quasi-domicile, or monthly stay, except 
in the case of vagi, who have no residence anywhere, or 
unless a weighty reason excuses from demanding such 
permission. 

Every marriage should be performed before the pastor 
of the bride, unless there are just reasons for breaking 
this rule. If the parties belong to different rites, their 
marriage must be celebrated in that rite and before the 
pastor of the bridegroom, unless particular laws dictate 
otherwise. 

Pastors who assist at marriages without the permission 
required by law, are not allowed to keep the stole fees, 
but must hand them to the parties’ own pastor. The 
canon restricts the obligation of refunding to cases of 
illicit assistance. Hence if the conditions prescribed in 
this canon have been complied with, the stole fee may 
be kept by the assisting pastor. This rule binds also in 
case of necessity, where no permission was required. 

4. Case of Necessity (can. 1098).—If the pastor, or 
the Ordinary, or a priest delegated by either, as prescribed 
by can. 1095 and 1096, cannot be had without great in¬ 
convenience, then: 


THE SACRAMENTS 


156 

a) In danger of death, marriage may be validly and 
licitly contracted in the presence of two witnesses; the 
same holds good also where there is no danger of death, 
provided it can prudently be foreseen that this condition 
of things will last for one month. 

b) In both cases, however, if a priest is available, he 
must be called to assist at the marriage, together with 
the other two witnesses; but the marriage is valid if 
contracted in the presence of the witnesses only. 

5. Extent of the Law (can. 1099).—The following are 
bound to observe the form prescribed above: 

i°. All persons baptized in the Catholic Church, as 
well as those converted from heresy or schism, even 
though they (whether Catholics or converts) have after¬ 
wards fallen away, as often as they contract marriage 
among themselves; 

2 0 . Catholics as well as converts (n. 1) who marry 
non-Catholics, either baptized or non-baptized, even after 
having obtained a dispensation from the impediment of 
mixed religion or disparity of cult; 

3 0 . Orientals marrying persons of the Latin Rite 
who are bound by that form. 

Saving the rule in n. 1, § 1, of this canon, non-Catholics, 
whether baptized or not, who marry among themselves, 
are nowhere bound to observe the Catholic form of mar¬ 
riage. Neither are those bound to observe the Catholic 
form who, born of non-Catholic parents and baptized 
in the Catholic Church, have grown up in heresy, schism, 
or infidelity, or without any religion at all, and marry 
a non-Catholic. 

6. Marriage Rites .—Apart from the cases of necessity, 
the rite prescribed in the liturgical books approved by the 
Church or received by praiseworthy custom are to be 
observed. 


FORM OF CELEBRATING MARRIAGE 157 


The Code, however, clearly and precisely distinguishes 
between Catholic and mixed marriages. 

a) Concerning Catholic marriages it says that the pas¬ 
tor should take care that the spouses receive the solemn 
nuptial blessing, which may be imparted even after they 
have lived in the matrimonial state for a long time, but 
only at Mass, according to the special rubrics provided 
for the purpose, and on days not forbidden. 

The solemn blessing may be imparted only by the 
priest who is validly and licitly authorized to assist at 
the marriage, or by his delegate. 

It may not be superfluous to summarize the liturgical 
rules for the celebration of marriage. 

1. The ritual or private blessing .—The priest asks 

the consent of both parties: “N., wilt thou take N., here 

present,” etc., to which both answer: “I will.” Then 
the priest says: u Ego coniungo vos” etc., after which 
follows the blessing of the ring. The bridegroom puts 
the ring on the finger of the left hand of the bride. 
Then the priest blesses the couple: (( Confirma hoc ” etc. 
This is all that belongs to the ritual blessing. It would 
be the ordinary form for Catholic marriages during the 
forbidden seasons or outside the nuptial mass. However, 
since, according to can. 1108, the bishop may permit the 
solemn blessing to be given even during the “holy” 
seasons, we will now see what this is. 27 

2. The solemn blessing comprises: 

(a) the ritual blessing just described, to be imparted 
by the priest clothed in the vestments prescribed for Holy 
Mass, except the maniple, which he assumes after the 
blessing. 

27 It certainly must be styled an abuse never to sing or cele¬ 
brate a nuptial mass, and it involves contempt of a Sacrament 
and Sacramental. 


158 


THE SACRAMENTS 


(b) The nuptial Mass, either Pro Sponso eit Sponsa, 
or a Mass of the day. The Missa pro Sponso et Sponsa 
is a votive Mass and must, therefore, be said without the 
Gloria and Credo and with Benedicamus at the end. This 
rule applies also when the Mass is solemnly sung, and 
no contrary custom may be tolerated. The second or 
third oration must be added according to the rubrics for 
the respective day. This Mass also contains two prayers 
for the spouses, one after the Pater Noster (" Propiti - 
are”), the other before the (C Placeat ,”—both to be said 
by the priest facing the couple. This Mass may be said 
on all days not prohibited by the rubrics. The rubrics 
forbid it on the following days: all Sundays and holy days 
of obligation; all holydays of the first and second class 
within the octaves of Epiphany, Easter, Pentecost, and 
Corpus Christi; all privileged vigils and ferial days, ex¬ 
cluding feasts of the first and second class. On these 
days the Mass de festo vel die occurrente must be said. 
However, the orations taken from the formulary of the 
Missa pro Sponso et Sponsa must be inserted after the 
Oratio diei and other orations, if such are prescribed in 
the Ordo, but before the imperata. On holydays like 
Epiphany, Trinity Sunday, Corpus Christi, which exclude 
other orations, the Oratio pro Sponso et Sponsa is to be 
added sub unica conclusione. If the bishop, according to 
can. 1108, permits solemn celebration during the for¬ 
bidden time, even on Christmas or Easter, the same 
orations, sub unica conclusione, must be added to the 
oration or orations of the day. And whenever the 
orations pro Sponso et Sponsa are said, the special ora¬ 
tions after the u Pater Noster” and before the <e Placcat” 
must also be recited. 

(c) At mixed marriages the consent of the parties must 


RECORDING MARRIAGES 


159 


be asked and received as in Catholic marriages; but all 
sacred rites are prohibited. If, however, great evil is 
foreseen from this prohibition, the Ordinary may permit 
one or the other of the usual ecclesiastical ceremonies, 
always exclusive of the nuptial Mass. 

7. Recording marriages .—As soon as possible, i. e. } not 
later than three days after the marriage ceremony, the 
pastor, or whoever takes his place, shall enter in the mar¬ 
riage register the names of the parties and witnesses, 
the place and date of the marriage, as well as other data 
prescribed by the rituals or diocesan statutes; he must 
do this even though another priest delegated by himself 
or the Ordinary assisted at the marriage. 

The pastor shall also enter every marriage contracted 
in his parish in the baptismal record. If the parties, 
or one of them, were baptized elsewhere, the pastor in 
whose parish the wedding was celebrated shall inform 
the pastor of the parish where the party or parties were 
baptized, either personally or through the episcopal chan¬ 
cery, of the fact of the marriage, so that the latter may 
enter it in his baptismal record. “Red tape/’ some may 
say; but this contempt is not shared by a defensor vinculi 
or any one who has ever had to do with a matrimonial 
court. Rome will hardly recede from this prescription, 
though petitions asking for a modification have been sub¬ 
mitted. Whenever a marriage was contracted in case 
of necessity (can. 1098), the priest who was present, or 
if no priest was present, the lay witnesses, are bound 
conjointly with the contracting parties to see to it that 
the marriage is recorded as soon as possible in the parish 
register. 

Concerning a <c marriage of conscience ” which is one 
contracted without the publication of the banns and in 


i6o 


THE SACRAMENTS 


secret, but not without the formalities prescribed, the 
local Ordinary, but not the vicar-general, is competent 
(see can. n04-1107). 

8. The time and place for weddings are thus described: 
Marriages may be contracted at any time of the year, 
but the solemn nuptial blessing may not be imparted from 
the first Sunday in Advent to Christmas, inclusive, and 
from Ash Wednesday to Easter Sunday, inclusive. 
However, the bishops may, for good reasons, permit sol¬ 
emn weddings even during these forbidden seasons, pro¬ 
vided the liturgical rules be observed and the parties ad¬ 
monished to refrain from too great ostentation. Whether 
the reasons are sufficient the bishop must judge. A suf¬ 
ficient reason would be if the pastor visited a mission 
only at rare intervals, or the couple lived at a great 
distance from church; also the sudden departure of a 
soldier for the barracks or battlefield. 

All marriages between Catholics should be cele¬ 
brated in the parish church. If another church or 
oratory, either public or semi-public, is preferred, the 
permission of the Ordinary or pastor should be ob¬ 
tained. 

The Ordinary may, in some exceptional case and for 
just and sound reasons, allow a marriage to be cele¬ 
brated in a private house. In churches or oratories of 
seminaries or of women religious the Ordinary should 
not grant permission for marriages to be celebrated, ex¬ 
cept in cases of urgent necessity, and then only with 
proper precautions. 

Marriages between Catholics and non-Catholics are to 
be performed outside the church. However, should the 
Ordinary in his discretion be convinced that evil might 
follow from insistence on this law, he may dispense 
from it, provided, however, that all sacred rites are 


EFFECTS OF MARRIAGE 


161 


omitted, or at least, in any and every case, no nuptial 
Mass is celebrated. 

ii. Effects of Marriage 

The effects of marriage concern first and above all 
the parties themselves, and secondly, the primary end of 
Matrimony, the procreation of children. 

1. \ alid marriage unites the contracting parties by a 
bond which is of its very nature perpetual and exclusive. 
Christian Matrimony, moreover, imparts sacramental 
grace to husband and wife if they place no obstacle in the 
way. 

Husband and wife, from the moment of marriage, have 
equal rights and duties concerning the acts pertaining to 
conjugal life. 

Unless otherwise provided by special laws, the wife 
partakes of the state of her husband as far as canonical 
effects are concerned. 

2. With regard to the children the Code says that par¬ 
ents are under the gravest kind of obligation to provide 
to the best of their ability for the religious and moral as 
well as the physical and civil education of their children, 
and for their temporal well-being. 

Then it proceeds to define the legitimacy of children 
by saying that those are legitimate who are conceived or 
born in valid or putative wedlock. 

A marriage is certainly valid if contracted without an 
invalidating impediment and according to the form pre¬ 
scribed by the Church. A putatively valid marriage is 
one contracted with due observance of the prescribed 
form, but with an invalidating impediment, the existence 
of which is unknown to one of the parties. To this rule 
exception is made: (a) if one of the parties is bound 


162 


THE SACRAMENTS 


by solemn religious profession when making (unlawful) 
use of the marriage rights, or (b) if one is bound by 
holy orders when making (unlawful) use of these rights. 
The offspring born of parents thus impeded would be 
sacrilegious. The other kinds of illegitimate children 
are: natural or spurious or adulterine. Illegitimate chil¬ 
dren may, however, be legitimated by the subsequent 
marriage of their parents, contracted validly or putatively, 
either by a new contract or by revalidation, though not 
consummated, provided the parents were capable of con¬ 
tracting marriage between themselves at the time of the 
conception, pregnancy, or birth. 

Legitimated children share in all the effects granted 
by Canon Law, unless the latter makes special exceptions. 
These canonical effects concern especially the capacity of 
being ordained without a dispensation and obtaining ec¬ 
clesiastical benefices and appointments, also certain prel- 
atures of inferior rank. The cardinalate and the epis¬ 
copate are excepted. 

12. Dissolution of the Matrimonial Bond 

i. A valid (Christian) marriage, which has been con¬ 
summated, cannot be dissolved by any human authority 
or for any reason except by death. An unconsummated 
marriage between two baptized persons, or between a 
baptized and a non-baptized person, can be dissolved by 
solemn religious profession or by a dispensation granted 
by the Apostolic See for a just cause, if requested by both 
parties, or by one, even though it be against the will of 
the other. 

What we have said elsewhere 28 concerning con¬ 
summation before baptism, still seems to us the more 

28 Vol. V, p. 343 f. of our Commentary. 


THE MATRIMONIAL BOND 


163 


probable view. For the matrimonium consummatum 
before baptism becomes ratum after baptism. It is, 
therefore, specifically the same marriage, because the 
same consent between the same persons constitutes and 
continues to constitute the matrimonium consummatum et 
return, and such a marriage cannot be dissolved by any 
human authority—not even by the Pope. 

2. There is, then, according to our view, only one way 
to solve a valid, and consummated marriage, viz., the 
Pauline Privilege. This means dissolution of a legiti¬ 
mate marriage between non-baptized persons, even though 
consummated, in favor of the faith. The salient points 
are, briefly these: 

a) Both parties must be unbaptized. This is a serious 
feature, for we know of cases which presented difficulty 
because the parties were separated for some time, and one 
of them was baptized in a sect. If a doubt of the valid 
baptism of one of the parties prevails, the privilege can¬ 
not be applied, until the fact is proved that Baptism was 
either not at all or invalidly conferred. This privilege 
cannot be applied to a marriage between a baptized and an 
unbaptized person contracted with a dispensation from 
the impediment of disparity of worship. 

b) The faith in favor of which the privilege can be 
applied is, at least de facto, the faith preached by St. 
Paul, who promulgated this privilege. But this faith 
must in one way or another be jeopardized. It is 
endangered by the Catholic party dwelling with the un¬ 
believer or by his departure, be this moral or physical, 
by hatred of faith, conjugal infidelity, and danger to the 
faith of the offspring. Does this privilege apply to the 
Catholic faith exclusively f We stated above that the 
faith here understood is that of St. Paul—which we 
Catholics take to be identical with the Catholic faith, for 


164 


THE SACRAMENTS 


there is only one true faith. That the one Lord, or his 
disciple, St. Paul, could have meant error, is hard to be¬ 
lieve. Favors are not extended for the purpose of ex¬ 
tending evil. This is our opinion. In matter of fact 
non-Catholics have another expedient for getting rid of 
the other party and certainly will not trouble ecclesiastical 
courts. 

c) In order to apply this privilege validly, interpella¬ 
tions must be made by the converted and baptized party 
to establish (1) whether the other party will be converted 
and receive Baptism; (2) whether he or she would at 
least consent to peaceful cohabitation without offense to 
the Creator. These interpellations must always be made, 
unless the Apostolic See has declared otherwise. 

They should, as a rule, be made at least in summary 
and extrajudicial form with the authority of the Ordi¬ 
nary of the converted party. The same Ordinary may 
grant to the unbelieving party, who asks for it, time to 
deliberate—a respite—under the explicit condition, how¬ 
ever, that failure to reply within the term conceded will 
be regarded as a negative answer. 

Private interpellations made by the converted party 
are valid and lawful, when the prescribed form can¬ 
not be followed; but in that case evidence that the inter¬ 
pellation has been made must be given by at least two 
witnesses, or in some other legal form. 

If the interpellations were omitted by virtue of a dec¬ 
laration of the Apostolic See, or if the infidel party has 
(either explicitly or tacitly) returned a negative answer to 
them, the baptized party may contract a new marriage 
with a Catholic, unless he or she has, after Baptism, given 
just cause to the infidel party for departing. 

Even though the baptized party has renewed marital 
relations with the infidel party after Baptism, he or she 


SEPARATION OF THE MARRIED 165 

does not thereby lose the right to contract a new marriage 
with a Catholic, and that right may be used if the infidel, 
having changed his mind, withdraws without a just cause, 
or refuses to cohabit peacefully, without blaspheming 
the Creator. 

The Ordinaries, in cases called ordinary, i e., those in 
which it is impossible to ascertain the whereabouts of 
the infidel consort, or in which an extrajudicial and sum¬ 
mary investigation shows that the absent spouse cannot 
be interpellated, 29 should proceed according to the Code. 
Therefore: (a) The marriage must have been contracted 
by both parties whilst they were certainly unbaptized; a 
dubious Baptism would not permit the application of the 
privilege; (b) After Baptism (but not before) either a 
summary canonical interpellation authorized by the Or¬ 
dinary, or a private interpellation duly proved, must be 
made to the infidel party concerning the two questions; 
(c) In the case of polygamists one question: “whether 
the unbeliever will be converted,” is sufficient; (d) 
After a negative answer, or undue delay in answering, 
the baptized party may contract a new marriage, in virtue 
of which the former marriage is dissolved and the in¬ 
fidel party becomes free. No other intervention on the 
part of the Ordinary is needed. 

13. Separation 

Husband and wife are bound to live together unless 
they have a just cause for separating. Just causes are: 
Adultery, provided the other party has not consented 
to the crime, or has not been responsible for it, or has 
neither expressly nor tacitly condoned it, or committed 

29 An ordinary case is also that of insanity of one of the par¬ 
ties, i. e., the one to be interpellated. 


THE SACRAMENTS 


166 

the same crime; if one party joins a non-Catholic sect; 
or gives his children an education which is not Catholic; 
or leads a scandalous and disgraceful life; or gravely en¬ 
dangers the spiritual or bodily welfare of the other; or 
renders the marital union intolerable by acts of cruelty. 
These and similar reasons give the injured spouse the 
right to withdraw by appealing to the Ordinary of the 
diocese, or even without legal process, if the guilt is 
proved and delay would be dangerous. 

After separation, the children must be educated by the 
innocent spouse. If one of the parties is non-Catholic, 
the education of the children belongs to the Catholic 
party, unless the Ordinary decides otherwise for the good 
of the children and their Catholic education is duly pro¬ 
vided for. 


14. Revalidation of Marriage 

An invalidly contracted marriage may be revalidated 
either by renewing the consent or by a sanatio in radice . 

1. Simple revalidation of a marriage which is invalid 
on account of a diriment impediment requires that the 
impediment cease, or be dispensed from, and that the 
consent be renewed at least by the party who is aware 
of the impediment. 

This renewal of consent is required by ecclesiastical 
law even if both parties gave their consent in the begin¬ 
ning and never withdrew it. 

The renewal of the consent must be a new act of the 
will ratifying a marriage which is known to have been 
null from the beginning. 

If the impediment is public, the consent must be re¬ 
newed by both parties in the form prescribed by law. 


REVALIDATION OF MARRIAGE 167 


If the impediment is occult and known to both parties, 
it suffices that the consent be renewed privately and in 
secret by both. 

If the impediment is occult and known to only one of 
the parties, it is enough that the party who is aware of 
it should renew his consent privately and in secret, pro¬ 
vided the other party’s consent continues. 

A marriage which is invalid for lack of consent is 
validated if the party who had not consented, now con¬ 
sents, provided the consent of the other party continues. 

If the want of consent was merely internal, it suffices 
that the party who did not give consent, now gives it 
interiorly. 

If the want of consent was external, it is necessary that 
the consent be manifested outwardly; and this outward 
manifestation must be made in the form prescribed by 
law if the want of consent was public, whereas a private 
and secret manifestation suffices if the defect was occult. 

A marriage null for want, of form must be contracted 
again according to the prescribed form in order to be¬ 
come valid. 

2. The sanatio in radice of a marriage is its revalida¬ 
tion, implying besides a dispensation from, or the cessation 
of, the impediment, the dispensation from the (ecclesiasti¬ 
cal) obligation of renewing the consent, and, by a fictio 
legis, retroaction as regards the canonical effects. 

Revalidation takes place at the moment the favor is 
granted; the retroaction is understood to reach back to 
the moment of the marriage, unless the contrary is stated. 

A dispensation from the obligation of renewing the 
consent may be granted without the knowledge of one 
or both parties. 

Therefore the validity of the marriage, once invalidly 


THE SACRAMENTS 


168 

contracted, begins at the moment— ex nunc —when the 
Cardinal Prefect puts his signature to the decree of re¬ 
validation. 

Entirely different from this genuine assertion is the 
other that the law feigns or assumes by a fictio iuris the 
validity of the marriage from the time it was first, 
invalidly, contracted. For this fiction, as in civil law, 
almost exclusively concerns the legal effects of the 
legitimation of offspring. Concerning these the sanatio 
works ex tunc, i. e., from the moment of the first cele¬ 
bration. 

Any marriage contracted in spite of an impediment of 
ecclesiastical law, or without legal form, may be revali¬ 
dated in radice, provided a naturally sufficient, though 
juridically ineffective, consent was given and continues. 

But a marriage contracted with an impediment of the 
natural or divine law, even if the impediment afterwards 
disappears, cannot be revalidated in radice, not even 
from the moment when the impediment has ceased. 

If the consent of one or both parties is wanting, the 
marriage cannot be revalidated in radice, regardless of 
whether the consent was wanting from the beginning, or 
was given at the beginning and afterwards withdrawn. 

If the consent was wanting in the beginning, but given 
latter, the sanatio may be granted from the moment the 
consent was given. 

A sctnatio in radice can be granted only by the Apos¬ 
tolic See, or by one who has received the faculty from 
that See, as our bishops who have applied for this faculty 
according to Formulary III. 

3. Second Marriage. —Although a chaste widowhood is 
more honorable than remarriage, second and further mar¬ 
riages are valid and lawful, provided the former mar¬ 
riage has been duly dissolved and the free status proved. 


THE SACRAMENTALS 


169 


But a woman who has received the solemn nuptial bless¬ 
ing cannot receive it again. Note that what is forbidden 
is only the solemn nuptial blessing, which is given during 
Mass (whether pro sponso et sponsa or the Mass of the 
Day) with the proper orations and special prayers; not 
the blessing of the Roman Ritual. This solemn blessing 
may and should be imparted even to a widow, if she has 
not received it at her first marriage, even though she 
may be emeinte. 


TITLE VIII 

THE SACRAMENTALS 

(Can. 1144-1153) 

1. Nature and Administration. —The Sacramentals are 
objects or actions resembling the Sacraments and of 
which the Church makes use by way of intercession to 
obtain especially spiritual effects. 

The legitimate minister of the Sacramentals is any 
clergyman duly empowered and not forbidden to exer¬ 
cise his power by the competent ecclesiastical authority. 

No one who lacks the episcopal character can validly 
perform consecrations, unless he is allowed to do so by 
law or in virtue of an Apostolic indult. However, any 
priest may perform blessings which are not reserved to 
the Roman Pontiff, to the bishops, or to others. And 
blessings given by a priest without the necessary per¬ 
mission, though they be reserved, are valid, unless the 
Apostolic See has added an invalidating clause to the 
reservation. 

Blessings reserved to the Pope are: those of the pal¬ 
lium, the Agnus Dei, the Golden Rose, and the swords 
of princes. 


170 


THE SACRAMENTALS 


Blessings reserved to the bishops are: the blessings of 
abbots, the consecration of virgins, the blessing of holy 
oils and chrism, the dedication of churches, the consecra¬ 
tion of altars and sacred vessels (not vestments), and 
the blessing of bells. 

Blessings reserved to others are those reserved to the 
pastor as per can. 462; and those reserved to religious 
orders and congregations . 30 

In performing or administering Sacramentals, the 
rites approved by the Church must be carefully observed. 

Consecrations and blessings, those called constitutive 
as well as those called invocative, are invalid if the for¬ 
mulas prescribed by the Church have not been employed. 

2. Use of the Sacramentals .—Blessings are to be be¬ 
stowed chiefly upon Catholics; but they may also be given 
to catechumens, and, unless the Church prohibits it, to 
non-Catholics in order to obtain for them the light of 
faith, or, together with it, bodily health. 

Objects consecrated or blessed by a constitutive bless¬ 
ing should be treated reverently and not used for pro¬ 
fane purposes, even though they may be in the possession 
of private persons. 

The exorcism should not be performed without the 
special and express permission of the Ordinary. But 
having obtained this it may be pronounced not only 
over faithful Catholics and catechumens, but also over 
non-Catholics and excommunicated persons. The min¬ 
isters of the exorcisms employed in Baptism, consecra¬ 
tions and blessings, are the persons who administer these 

30 See Rituole Rom., Tit. VIII, cc. 20-23, but cc. 20-22 are no 
longer reserved. Ibid., Tit. VIII, c. 1-19, blessings reserved to 
religious. What we have said elsewhere, we here repeat: de¬ 
votional articles destined for the use of all the faithful should 
not be subject to a caste. 


CHURCHES 


171 

sacred rites. Hence for these cases no special permission 
from the Ordinary is required. 

PART II 

SACRED PLACES AND TIMES 
(Can. 1154-1254) 

Sacred places are places set aside for divine worship 
or for the burial of the faithful, by a consecration or 
blessing prescribed for this purpose in the approved 
liturgical books. 

Consecration belongs, by law, to the local Ordinary, 
if he is endowed with the episcopal character. The local 
Ordinary is also entitled to bless sacred places which do 
not belong to exempt religious. The same is to be said 
concerning the laying of corner-stones. Consecrations 
and blessings must be recorded. 

TITLE IX 

CHURCHES 

(Can. 1161-1187) 

1. By the term church is understood a sacred building, 
dedicated to divine worship, which may be made use 
of by all the faithful for public services. A church may 
not be built, even by exempt religious, without the ex¬ 
press permission of the bishop. 

2. All churches must be consecrated or blessed. Par¬ 
ish churches should, if possible, be consecrated. The 
feast of the consecration is to be celebrated annually. 
Each consecrated or blessed church must have its own 
title, which cannot be changed after the dedication. 


172 


SACRED PLACES 


The titular feast is to be celebrated annually according 
to the rubrics. 

Churches cannot be dedicated to a Beatus without an 
Apostolic indult. 

3. Church hells must be consecrated or blessed accord¬ 
ing to the rites prescribed in approved liturgical books. 
Their use is regulated exclusively by the church author¬ 
ities. Aside from the stipulations made by the donor, 
with the approval of the Ordinary, a blessed bell cannot 
be used for purely profane purposes, except in cases of 
necessity, or by permission of the Ordinary, or by law¬ 
ful custom. 

4. A church does not lose its consecration or blessing 
unless it is totally destroyed, or the larger part of the 
walls has collapsed, or the Ordinary has turned the build¬ 
ing over to profane uses. 

5. A church is desecrated or violated by the follow¬ 
ing acts, provided they are certain, notorious, and com¬ 
mitted in the building itself, to wit: 

i°. The crime of homicide; 

2°. Injurious and serious shedding of blood; 

3 0 . Putting the Church to impious or sordid uses; 

4°. The burial of an infidel or of a person excommnuni- 
cated by a declaratory or condemnatory sentence. 

The desecration of a church does not entail the des¬ 
ecration of the cemetery, even though the latter adjoins 
the church, and vice versa, desecration of the cemetery 
does not involve desecration of the church. 

Until reconciliation is effected, it would be unlawful to 
hold divine services in a desecrated church or to ad¬ 
minister the Sacraments or bury the dead there. Hence 
all liturgical services which have been instituted by divine 
or ecclesiastical law and are performed exclusively by 
the clergy, are strictly forbidden in a desecrated church. 


CHURCHES 


173 


If the desecration happens during the divine office, this 
must cease immediately. If before the Canon of the 
Mass, or after Communion, the Mass must be discon¬ 
tinued. If between the beginning of the Canon and 
Communion, Mass must be continued until Communion, 
viz., until the “Corpus tuum This is the rule of the 
Missal. 

6. Reconciliation should be performed as soon as pos¬ 
sible. If the fact of desecration is doubtful, provisional 
reconciliation may take place. A church which was 
merely blessed may be reconciled by its rector or by 
any other priest with the (at least) presumed consent 
of the rector. A consecrated church can be reconciled 
only by the Ordinary; but in cases of serious and urgent 
necessity, if the Ordinary cannot be reached, the rector 
of a consecrated church may reconcile it and inform the 
Ordinary afterwards. 

The reconciliation of a blessed church may be effected 
with ordinary holy water, whereas for a consecrated 
church water blessed according to the liturgical laws 
should be used. 

7. All to whom it pertains shall take care that the 
churches are kept neat, as becomes the house of God; 
business and fairs, even though for pious purposes, must 
not be held in them, and in general everything that is 
incompatible with the holiness of the place must be ex¬ 
cluded. 

8. The administration of the goods (property) des- 
tined for repair and upkeep of divine service belongs to 
the pastor, who may—but is not bound to—have trustees. 
If there are trustees they are forbidden to meddle: 

1°. With the functions of divine worship in church; 

2°. With the manner and time of ringing the bells or 
the order of services in the church and cemetery; 


174 


SACRED PLACES 


3°. With determining the manner of taking up collec¬ 
tions, making announcements, and other acts which refer 
to divine worship or the adornment of the church, and 
are performed in church; 

4°. With the arrangement of the altars, communion 
rails, pulpit, organ and organ loft, seats and benches, col¬ 
lection boxes and other things belonging to divine serv¬ 
ice ; 

5°. With the admission or rejection (because of un¬ 
fitness according to traditional usage or the laws of the 
Church) of sacred utensils and other things destined 
either for divine worship or the embellishment of the 
church or sacristy; 

6°. With the manner of writing, arranging or keep¬ 
ing the parochial books and other documents which be¬ 
long to the archives of the parish. 31 

Offerings made in favor of a parish church or mission, 
or of a church located within the boundaries of a parish 
or mission, are administered by the respective pastor or 
missionary. The pastor, the missionary, the rector of a 
secular church, whether he be a secular priest or a 
religious, must administer these offerings according to 
church law and render an account to the Ordinary. 

9. The duty of repairing the parish church rests upon 
the following in the order named: 

31 Here we will add from Cone. Balt. 7/7 (n. 287) the pre¬ 
scription (still in force) concerning the qualifications of trustees: 
(a) They must have performed their Easter duty; (b) they 
must rent a seat or otherwise contribute to the support of the 
church; (c) they must send their children to a Catholic school; 
(d) they must not be members of any secret or forbidden society. 
The same Council (/. c .) also rules, in accordance with the Code, 
that it is the bishop who decides whether trustees are necessary 
or not, how many of them there should be, and how they should 
act. This latter enactment is negatively determined by the Code. 


ORATORIES 


175 


1 °. On the church funds, as described above; 

2 °. On the advowson or patron; 

3 °. On those who receive some income from the church, 
in proportion to such income, to be fixed by the Ordi¬ 
nary ; 

4 °. On the parishioners, whom the Ordinary should 
exhort rather than compel to contribute. 

TITLE X 

ORATORIES 

(Can. 118&-1196) 

1. Name and Kinds. —An oratory is a place destined 
for divine worship; not, however, principally for the 
purpose of having all the faithful worship there publicly. 
There are three kinds mentioned and defined by the 
Code: 

a) A Public Oratory is one built for the benefit of a 
certain corporation, or of private individuals, but in 
such a manner that all the faithful have the right to fre¬ 
quent it, at least at the time when divine services are 
held there. 

b) Semi-public Oratories are such as are built for the 
convenience of a certain community or class of people, 
but are not open to all the faithful indiscriminately. 
Here stress is laid on the corporate or specified class of 
faithful who make up the ordinary attendance at a chapel. 
The rest of the faithful cannot set up a claim to be ad¬ 
mitted, and if they are admitted, it is by mere favor, 
which should prejudice neither the community itself nor 
the parish at large. 

c) Private or Domestic Oratories are those erected in 
private homes for the convenience of a family or of 


176 


SACRED PLACES 


private individuals. The term family must here be taken 
in its strict sense, and excludes artificial persons and cor¬ 
porations. 

2. Erection .—Public oratories require the same for¬ 
malities for erection as churches; semi-public oratories 
need the permission of the Ordinary. In colleges and 
boarding schools for the young, in high schools and lyce- 
ums (intermediate classical schools), in fortresses and 
barracks (garrisons), in prisons and asylums, etc., but 
one principal oratory may be erected, unless the Ordinary 
judges that need or great usefulness demand more. 

3. Functions .—In a public oratory, therefore, provided 
it has been dedicated for permanent divine worship by 
the authority of the Ordinary through blessing or con¬ 
secration, all sacred functions may be held which are not 
forbidden by the rubrics. 

In a semi-public oratory, lawfully erected, all divine 
offices and ecclesiastical functions may be held, as far as 
the rubrics and the rulings of the Ordinary permit. 

In private oratories the local Ordinary may permit one 
Mass to be said, not habitually, but upon occasion, in 
some extraordinary case, and provided there is a just 
and reasonable cause. 

In private cemetery chapels several Masses may be per¬ 
mitted. Private oratories are neither consecrated nor 
blessed, but must be exclusively reserved for divine 
service. 


TITLE XI 

ALTARS 

(Can. 1197-1202) 

1. In the liturgical sense of the word, an immovable 
or a fixed altar means the upper table with its supports, 


ALTARS 


177 


consecrated as a whole together with the table. A mov¬ 
able or portable altar is a stone, generally of small size, 
which is consecrated alone, and called portable altar or 
sacred stone; or the same stone with its support, even 
though the latter was not consecrated with the table. 

In every consecrated church at least one (preferably 
the main) altar must be immovable; but in churches that 
are merely blessed, all altars may be movable. 

The table (mensa ) of an immovable altar as well as a 
sacred stone must consist of one natural stone, whole and 
not easily crumbled. The altar stone is to be a single 
slab, which excludes several parts. 

In an immovable altar the table or stone plate must 
extend over the whole altar and be properly joined to 
the support; the support itself, or at least the side props 
or columns which support the table, must also be of 
stone. 

The sacred stone (portable altar) must be large enough 
so that at least the host and the larger part of the base 
of the chalice may find room thereon. 

A sepulchre containing relics of saints and closed witn 
a stone is required for every kind of altar. 

2. An altar must be consecrated, and the consecration 
remains until the altar is desecrated. An immovable 
altar loses its consecration if the table or mensa is re¬ 
moved from its support, even if only for a moment; but 
in this case the Ordinary may grant permission to any 
priest to reconsecrate the altar with the short rite and for¬ 
mula. 32 (Can. 1200, § i). 

32 The formulae, though not yet embodied in the Rituale Ro - 
manum (at least as far as we could see in the latest edition) are 
contained in the Acta Apostolicae Sedis, 1920, Vol. XII, pages 
449-453. There is one formula for reconsecration if consecration 
was lost according to can. 1200, § 1; and another in case conse¬ 
cration was lost as per can. 1200, § 2, nn. 1 and 2. 


i 7 8 


SACRED PLACES 


Fixed as well as portable altars lose their conse¬ 
cration : 

i.° By a fracture which is regarded as very consider¬ 
able by reason either of the break itself or of the anointed 
place; 

2. 0 If the relics are removed, or the lid of the sepulchre 
is broken or removed, unless this is done by the bishop 
or his delegate for the purpose or fastening, repairing, 
or replacing it, or for the purpose of inspecting the relics. 

(Can. 1200, § 2; formulas see in Appendix). A slight 
crack in the cover of the sepulchre does not involve 
desecration, and any priest may fill it up with cement. 

The desecration of a church does not involve the dese¬ 
cration of its fixed or portable altars, and conversely. 

TITLE XII 

ECCLESIASTICAL BURIAL 

(Can. 1203--1242) 

1. Ecclesiastical burial consists in bringing the corpse 
to the church, holding the funeral service over the same 
in church, and entombing it in a place destined for 
the burial of departed Catholics. Cremation is strictly 
prohibited. 

2. Cemeteries must be either solemnly or simply blessed. 
Burial within the Church is not permissible except for 
certain personages. 

The Catholic Church has the right to possess her own 
cemeteries. Where this right has been violated, and 
there is no hope of recovering it, the local Ordinaries shall 
see to it that the civil cemeteries are blessed, provided the 
majority of the persons to be buried in them belong to 


ECCLESIASTICAL BURIAL 


179 

the Catholic faith, or at least that Catholics be granted a 
separate space, which should be blessed. 

If not even that much can be obtained, then the grave 
of each Catholic must be blessed singly according to the 
liturgical books. 

Each parish should have its own cemetery, unless the 
local Ordinary assigns a common cemetery to several 
parishes. 

Priests and clerics should, if possible, have a special 
burial place, located in a more prominent part of the 
cemetery; the priests’ lot should be distinguished from 
that of the lower clerics if it can conveniently be 
done. 

The canonical regulations concerning the interdict and 
the desecration and reconciliation of churches apply also 
to cemeteries. 

A body that has been laid to final rest by ecclesiastical 
burial cannot be exhumed without the permission of the 
Ordinary. 

3. Funeral services should be held for every departed 
Catholic who is not deprived of this honor, in his parish 
church, unless another church has been lawfully chosen. 
If the deceased belonged to several parishes, the funeral 
should be held in the church of the parish within which 
he died. 

All Catholics may freely choose their funeral church 
or burial place, unless they are expressly forbidden to. 
do so by law. Those forbidden are boys who have not 
yet completed their fourteenth and girls who have not yet 
completed their twelfth year. In their stead, even after 
their death, the parents or guardians may make the 
choice. 

Wives as well as boys and girls who have completed 


i8o 


SACRED PLACES 


the age of fourteen or twelve, respectively, are free to 
make their choice, and are not hampered in this matter 
by marital or parental power. 

Professed religious of whatever rank or dignity, ex¬ 
cept bishops, are deprived of the right of choosing their 
funeral church or burial place. Novices, however, may 
select their funeral church. 

4. The duties and rights of pastors are thus deter¬ 
mined in can. 1230: 

Where it is customary the pastor should accompany the 
corpse from the house to the church, even though the 
parishioner may have died in a strange parish. 

In exempt churches the parochus proprius may take up 
the body and accompany it to the exempt church; but the 
cross behind which the funeral procession marches must 
be that of the exempt church, and the rector of the lat¬ 
ter is entitled to hold the funeral services. 

In non-exempt churches the celebration of the funeral 
service belongs to the pastor in whose parish the church 
selected for the funeral is located, provided the deceased 
was a subject of his. Therefore the rector or chaplain 
of the church in which the exequies are held must make 
way for the parochus proprius of the deceased. If the 
latter refuses to perform the services, the rector or chap¬ 
lain of the ecclcsia funerans may do so. 

As to religious of female institutes and their novices,— 
if they die in their religious house, their bodies must be 
brought to the threshold of the enclosure, whence the 
chaplain conducts the funeral procession to the church 
or oratory, where he holds the exequies. But the chap¬ 
lain is entitled to this privilege only if the religious are 
exempt from the jurisdiction of the pastor. If they are 
subject to the pastor in whose parish the religious house 
is located, the latter is obliged and entitled to conduct the 


ECCLESIASTICAL BURIAL 


181 


funeral. If sisters or novices die outside their religious 
house, the common law takes effect. 

The burial should be held by the priest who performed 
the funeral service or by his substitute. 

As to funeral processions the Code rules that, except 
for a weighty and just reason approved by the Ordi¬ 
nary, the pastor has no right to prevent secular or religious 
clerics, or pious societies whom the family or their heirs 
wish to invite, from accompanying the body to the church 
and grave-yard and assisting at the funeral. But the 
clergy of the respective church should be invited above 
all others by the family of the deceased or his heirs. 

No societies or emblems manifestly inimical to the 
Catholic religion are to be admitted. Concerning the 
emblems of Masonic lodges—for these are here chiefly in¬ 
tended—the Holy Office has decided as follows: Ec¬ 
clesiastical sepulture may be given only to such members 
of a condemned sect as have received the Sacraments and 
have not, after receiving them, demanded to be buried 
with or under sectarian insignia, or have formally re¬ 
tracted their desire. If such emblems are placed on the 
coffin against the will of the deceased, they must be re¬ 
moved before the funeral starts (ante associationem 
cadaveris ). The same rule applies to banners or 
standards. 

All those who accompany the funeral must obey the 
orders of the pastor concerning the arrangement of the 
funeral cortege,—with due regard, of course, to flhe 
rules of precedence. 

Clerics shall never act as pall-bearers for a defunct 
layman, no matter what his rank or dignity may have 
been, because the clerical dignity transcends every sec¬ 
ular rank and degree. 

5. Funeral fees should be fixed by diocesan statute, 


SACRED PLACES 


182 

and, if feasible, be classified as to expenditure and pomp. 
The poor shall by all means be given a decent funeral 
and burial, inclusive of the exequies, free of charge, ac¬ 
cording to the sacred liturgy and the diocesan statutes. 

Concerning the quarta funeris, or pastor’s portion 
when the funeral is not held in the parish church, the 
custom does not prevail in this country, so far as we are 
aware. 

After the funeral services the minister shall enter in 
the book of the dead the name and age of the deceased, 
the name of his parents or consort, the date of his demise, 
who administered the Sacraments, what Sacraments, and 
the place and date of the funeral. 

6. Those deprived of ecclesiastical burial are, besides 
the non-baptized, the following: 

i.° Notorious apostates from the Christian faith and 
persons who notoriously belonged to a heretical or schis- 
matical sect, or to the Masonic sect, or to other societies 
of the same kind; 

2. 0 Persons excommunicated and interdicted after a 
condemnatory or declaratory sentence; 

3. 0 Those who died in a duel or from a wound received 
in a duel; 

4. 0 Those who have deliberately killed themselves; 

5. 0 Those who ordered their body to be cremated, un¬ 
less they have retracted their order before death; 

6.° Other public and manifest sinners. 

All these are deprived of Christian burial unless they 
gave signs of repentance before death. If the pastor 
has a doubt, for instance, concerning a suicide, or whether 
a wound received in dueling was the direct cause of 
death, he should, if time permits, inform the Ordi¬ 
nary and abide by his decision. If the doubt remains after 
the pastor has been advised by the Ordinary, ecclesiasti- 


HOLYDAYS 


183 

cal burial may be granted, provided no scandal is given. 
Scandal may be removed by divulging the fact that the 
deceased gave public signs of repentance, or that, for in¬ 
stance, the suicide was committed in a moment of mental 
aberration according to a physician’s verdict. 

For those who have been deprived of ecclesiastical bur¬ 
ial no (public) Requiem Mass, no anniversary or other 
public funeral service may be held. 

Holy Seasons 

1. The supreme authority of the Church alone can 
establish, transfer, or abolish holydays as well as days 
of fasting and abstinence. 

Local Ordinaries may, per modum tantam actus (i. e., 
for a transient reason and for the time being, but not 
for always or habitually), prescribe the observance of a 
holyday or of a day of fasting and abstinence. 

2. Pastors in individual cases and for a just cause may 
dispense their subjects from the common law of keeping 
feasts and from the observance of fast and abstinence, 
or from fast and abstinence at the same time. 

3. Holydays as well as days of fasting and abstinence 
run from midnight to midnight, i. e., twenty-four hours, 
counting from twelve o’clock midnight to twelve o’clock 
of the following night, according to the time in vogue. 

TITLE XIII 

HOLYDAYS 

Holydays are all Sundays and, in the United States, the 
feasts of the Immaculate Conception, Christmas, New 
Year’s (the Circumcision), the Ascension, the Assump¬ 
tion of the Blessed Virgin Mary, and All Saints’. 


184 


HOLY SEASONS 


On these days a Mass must be heard, and servile work 
must cease, so far as custom does not permit it to be 
carried on. 

The law of hearing Mass may be complied with by 
attending Mass in any Catholic rite, in any church, public 
or semi-public oratory or grave-yard chapel, with the 
sole exception of private chapels in the case of those not 
included in the favor. 

TITLE XIV 

ABSTINENCE AND FASTING 

1. The law of abstinence forbids the eating of flesh 
meat and broth or soup made of meat; but it does not 
forbid eggs, lacticinia, and seasoning with animal fat. 

The law of fasting permits only one full meal a day, 
but it does not forbid the taking of some food for break¬ 
fast and supper. 

The quantity and quality of these repasts is left to 
local custom. Care must be taken that one does not take 
“something” between meals too often, as this might event¬ 
ually constitute a considerable quantity or amount to a 
full meal. 

Flesh meat and fish may be taken at the same meal, and 
dinner and supper may be interchanged. 

The law of abstinence binds all who have completed 
the seventh year of age. It obliges even on the vigils 
of suppressed feasts if these vigils were observed by 
reason of a particular precept or vow. 

The law of fasting obliges all Catholics from the 
twenty-first year of age, completed, until the beginning 
of the sixtieth year. 

2. Abstinence only must be observed on all Fridays of 


ABSTINENCE AND FASTING 


185 

the year. The law of fasting and abstinence must be 
observed on Ash Wednesday, on the Fridays and Satur¬ 
days of Lent, on the Ember days, and on the vigils of 
Pentecost, the. Assumption, All Saints’, and Christmas. 

The fast only must be observed on all other days 
of Lent. 

On Sundays and holydays of obligation (outside of 
Lent) the laws of fasting and abstinence do not bind; 
nor need vigils of holydays of obligation which fall on a 
Sunday be observed on the preceding day. Thus, if the 
Feast of the Assumption, or All Saints’, or Christmas 
should fall on a Monday, the vigil need not be observed 
on the preceding Saturday or Sunday. 

But if Christmas falls on a Monday, as it did in 1922, 
the preceding Saturday (before the fourth Sunday of 
Advent) must be observed on account of its being an Em¬ 
ber day. 


PART III 

DIVINE WORSHIP 
(Can. 1255-1264) 

1. To the Blessed Trinity as well as to each of the 
three Divine Persons, to Christ our Lord also under the 
sacramental species, is due the cult of lajria; to the 
Blessed Virgin Mary, the cult of hyperdulia; to the other 
Saints reigning with Christ in Heaven, the cult of dulia. 

To the sacred relics and images a relative veneration 
and worship are due, in as far as these relics and images 
refer to persons. The dulia which we exhibit to the 
person of a Saint is absolute, in contradistinction to the 
merely relative worship which we give to relics and 
images. Another essential difference is that relics and 


DIVINE WORSHIP 


186 

images, being inanimate objects, may be venerated, but 
not invoked. 

The Apostolic See alone has the right to prescribe the 
sacred liturgy and to approve liturgical books. 

The ministers of the Church depend exclusively on 
their ecclesiastical superiors, not on civil authority in the 
exercise of divine worship. 

Prayers and devotions are not to be permitted in 
churches and oratories without previous revision by, and 
express permission of, the local Ordinary, who shall re¬ 
port difficult cases to the Apostolic See. The local Or¬ 
dinaries cannot approve new litanies for public recital. 

2. Communicatio in sacris or participation in non-Cath- 
olic worship is forbidden or permitted under the follow¬ 
ing conditions: It is unlawful for Catholics to assist ac¬ 
tively at, or to take part in, the religious services of 
non-Catholics. A passive or merely material presence 
may be tolerated for reasons of civil duty or honor, at 
funerals, weddings, and similar celebrations, provided no 
danger of perversion or scandal arises. In doubtful cases 
the reason for assisting must be grave, and recognized as 
such by the bishop. 

3. The seats in churches should be separate for men 
and women, if possible. The men should assist at sacred 
functions, either in or outside the church, with their 
heads uncovered, unless a reasonable national custom or 
special circumstances justify a departure from this rule. 
The women, on the other hand, should cover their heads 
and be dressed modestly, especially when they approach 
the Lord’s Table. 

Prominent seats may be granted to magistrates, but 
outside the sanctuary; otherwise the reservation of seats 
depends on the permission of the local Ordinary. Pew- 
rent is not forbidden. 


WORSHIP OF BLESSED SACRAMENT 187 


4. The Church music must be in keeping with the 
liturgical laws, but this does not mean that Gregorian 
Chant alone is permissible. Besides, a reasonable cus¬ 
tom allows women to sing in the choir. If they are 
female religious, they should be secluded from public 
view. 

TITLE XV 

RESERVATION AND WORSHIP OF THE BLESSED SACRAMENT 

(Can. 1265-1275) 

1. Provided there is a guard and a priest to say Mass 
at least once a week, the Blessed Sacrament must be kept 
in every parish and quasi-parish church, and in every 
church adjoining the house of exempt religious, male as 
well as female. 

With the permission of the local Ordinary the Holy 
Eucharist may be kept in collegiate churches, in the prin¬ 
cipal public or semi-public oratories of charitable or relig¬ 
ious houses, as well as in those of ecclesiastical colleges, 
in charge of either the secular or the religious clergy. 

2. The Blessed Sacrament altar can be only one altar 
in a church, and, except in cathedral churches, should, as 
a rule, be the main altar, which, therefore, should be 
more elaborately decorated than the rest. 

3. The tabernacle must be immovably fixed in the mid¬ 
dle of the altar, be skillfully constructed, safely locked, ap¬ 
propriately decorated according to the liturgical rules, 
empty, and so carefully guarded that there is no danger 
of profanation. 

The key to the tabernacle in which the Blessed Sacra¬ 
ment is kept must be carefully guarded; the responsibility 
for carrying out this law rests with the priest who has 
charge of the church or oratory. 


DIVINE WORSHIP 


188 

At least one lamp must burn day and night before the 
tabernacle in which the Blessed Sacrament is kept. 

4. The consecrated hosts reserved for the communion 
of the faithful or for the exposition of the Blessed Sacra¬ 
ment must be fresh and should be frequently renewed, 
the old ones having been duly consumed, so that there is 
no danger of corruption. 

5. Private exposition of the Blessed Sacrament, i. e., 
with the ciborium, may be held for any reasonable cause 
without the permission of the Ordinary in churches and 
oratories in which the Blessed Sacrament is lawfully kept. 

Public exposition, i. e., with the ostensorium or mon¬ 
strance, may be held in all churches on the feast of Corpus 
Christi and every day within its octave, at Mass and 
Vespers, but not on other occasions, except for a just 
and weighty reason, especially of a public character, and 
with the permission of the diocesan Ordinary, which is 
required also for churches which belong to exempt re¬ 
ligious. 33 

The Forty Hours’ Devotion should, if possible, be 
held every year; if it cannot be held, a short adoration 
lasting at least a few hours should be substituted for it. 

TITLE XVI 

WORSHIP OF SAINTS, IMAGES, AND RELICS 

(Can. 1276-1289) 

I. The good and useful practice of invoking the Saints, 
especially the Blessed Virgin, and venerating their relics 
and images, is regulated by the authority of the Church, 
which “canonizes” some and declares others “Blessed.” 

33 For a further explanation the reader may be referred to 
our Commentary, Vol. VI, pp. 228 ff. 


SAINTS, IMAGES, AND RELICS 189 


Canonized Saints may be worshipped everywhere and by 
any act of dulia, but the Blessed (beati ) may be wor¬ 
shipped only in the places and manner expressly granted 
by the Roman Pontiff. 

It is praiseworthy for nations, dioceses, provinces, con¬ 
fraternities, religious institutes, places and corporations 
to choose patron saints with the approval of the Apostolic 
See. But a “beatns” can be chosen as patron only by 
a special indult. 

2. Unusual images should not be tolerated, and the 
local Ordinaries should never allow sacred images to be 
publicly exhibited to the veneration of the faithful, unless 
these images are in keeping with the approved usage of 
the Church. Neither shall the Ordinary permit the ex¬ 
hibition, in churches or sacred places, of images which 
offend against dogma or against decency or propriety, or 
are apt to lead the ignorant into error. 

Images which possess great value by reason of their 
antiquity, artistic finish, or the veneration given to them, 
and which have been exhibited to the worship of the 
faithful in churches and public oratories, if in need of 
repairs, must not be restored without the written consent 
of the Ordinary, who shall seek advice from wise and 
experienced men before he grants such a permission; nor 
should they be alienated without his consent. 

3. Reliquiae insignes (important relics) are: the en¬ 
tire body, head, arm, forearm, heart, tongue, hand, limb 
of a saint or blessed person, or that part of his body 
in which a martyr suffered death, provided it be entire 
and not too small. The alienation of such relics is pro¬ 
hibited. Only genuine relics may be exhibited for public 
veneration in churches, including the churches of exempt 
religious. The genuineness of a relic is ascertained by 
an authentic document, issued either by a cardinal, or by 


DIVINE WORSHIP 


190 

the local Ordinary, or by a clergyman who has obtained 
an Apostolic indult authorizing him to authenticate relics. 

A vicar-general needs a special mandate to issue such 
a document. 

Relics should be carefully preserved and guarded 
against profanation, especially in case of hereditary trans¬ 
fer or the sale of reliquaries. 

TITLE XVII 

PROCESSIONS 

(Can. 1290-1295) 

1. Unless there be an immemorial custom to the con¬ 
trary, or unless, in the prudent judgment of the bishop, 
local circumstances demand a deviation from the rule 
here laid down, only one solemn procession is permitted 
in the same place through the public streets on the feast 
of Corpus Christi. This procession is to be arranged 
and led by the more prominent church of the respective 
city or town, and all the clergy and male religious orders, 
including the exempt, as well as the confraternities of 
laymen, must attend it. Only those regulars who live 
perpetually in strict enclosure or dwell three thousand 
paces from the city are excused from participation. 34 

2. Neither the pastor nor any one else can introduce 
new processions or transfer or abolish the customary 
processions without permission from the local Ordinary. 

At processions which are peculiar to any church, all 
the clergy belonging to that church must be present. 

34 From the wording of the text it is evident that the local 
Ordinaries cannot compel either the secular or religious clergy 
to attend the Corpus Christi procession of the cathedral, if held 
only within the premises of the cathedral property. 


SACRA SUPELLEX 


191 


TITLE XVIII 

SACRA SUPELLEX 

(Can. 1296-1306) 

1. Sacred vessels, utensils, vestments, linens, especially 
when blessed or consecrated as required by the liturgical 
rules, and used for public worship, must be carefully 
guarded in the sacristy of the church or in some other 
safe and decent place, and may not be used for profane 
purposes. 

An inventory should be made of the whole stock and 
diligently preserved. 

As to the material and form of the sacra supellex, the 
liturgical laws, ecclesiastical tradition, and as far as pos¬ 
sible, the rules of sacred art should be observed. 35 

Rectors of churches and others entrusted with 
the care of the articles known as sacra supellex shall 
diligently preserve them and keep them clean and 
neat. 

2. The blessing of sacred vessels, utensils, etc., pro¬ 
vided no sacred anointment is required, may be performed 
by the pastors for the churches and oratories situated 
within their parishes; by the rectors for their own 
churches; by priests delegated by the local Ordinary, 
within the limits of their delegation and the jurisdiction 
of the delegans; by religious superiors and priests of the 
same institute delegated by the superior for their own 
churches and oratories and those of nuns subject to them. 

3. The loss of blessing (or consecration) occurs: (a) 

35 \y e cannot convince ourselves that “Gothic” vestments—like 
the so-called Gothic letters or types—have a monopoly, or should 
be used in Romanesque churches. 


192 


DIVINE WORSHIP 


When the blessed article or object is so badly damaged 
or altered that its form is lost and it becomes unfit for its 
proper purposes; (b) When the article or object has been 
used for unsuitable purposes or exhibited for public sale. 

Chalice and paten do not lose their consecration by the 
wearing away of the gilding, or by the process of regild¬ 
ing; but if the gold plating wears off, there is a grave 
obligation to have the vessel replated. 

4. In handling such sacred things, care must be taken 
that the chalice with the paten, as well as the purificators, 
palls, and corporals, after having been used for the Sacri¬ 
fice of the Mass, before being washed, are touched only 
by clerics or by those who have charge of them. 

Concerning the ostensorium, cihorium, and custodia 
there is no prohibition of touching these objects, nor are 
laymen obliged to use a cloth in handling them. 

Purificators, palls, and corporals, which have been used 
in the Sacrifice of the Mass, shall not be given to lay 
persons, even though they be religious, to be washed by 
them before they have been washed by a cleric in higher 
orders. The water of the first washing should be poured 
into the waste-hole, called sacrarium, or, if there is no 
sacrariam, into the fire. 

TITLE XIX 

VOWS AND OATHS 

(Can. 1307-1321) 

1. Vows 

1. The essence of a vow consists in a deliberate and 
free promise made to God concerning something pos- 


vows 


193 


sible and better; it obliges by reason of the virtue of 
religion. Since free and deliberate action is required, 
the legislator declares a vow made under the influence of 
grave and unjust fear void, although in itself fear would 
not necessarily render it null. 

2. A vow is public when it is accepted by a lawful ec¬ 
clesiastical superior in the name of the Church; all vows 
not so accepted are private. 

A vow is solemn if it is acknowledged as such by the 
Church; otherwise it is simple. 

A vow, as such, obliges no one but the person who 
makes it, for the reason that a vow involves a strictly 
personal obligation, which can neither be assumed nor 
fulfilled except by the person who has made the prom¬ 
ise. 36 

3. Reserved private vows (i. e., reserved to the Holy 
See), are those of perfect and perpetual chastity and of 
entering a religious order with solemn vows, provided 
they are made unconditionally and after the eighteenth 
year of age has been completed. 

The vow of perfect and perpetual chastity (perfectae 
et perpetuae castitatis) tends to an act that is perfect in 
itself and by reason of the matter intended. If this 
vow is taken from a motive lower than love of the virtue 
of chastity, it is imperfect. Such a lower motive may 
be vanity, physical imbecility, or even stubbornness. 
A vow of chastity would be imperfect on the part 
of the matter vowed, if only virginity, or integrity of 
the body, or the obligation not-marrying, was con¬ 
tracted. 

4. The obligation of a vow ceases: (a) after the time 

36 If a vow is made by a parish, or municipality, or religious 
community, it obliges only those who have made it, unless an 
ordinance or statute was made to perpetuate the obligation. 


194 


DIVINE WORSHIP 


conditionally set for its fulfillment has expired; (b) if 
there is a substantial change in the thing promised; (c) 
if some condition on which the vow was made to depend, 
is not fulfilled; (d) if the cause or object for which the 
vow was made ceases to exist; (e) by nullification, dis¬ 
pensation, or commutation. 

The irritation or nullification of vows is not within the 
power of pastors or confessors, but they are called upon, 
in and outside the confessional, to instruct parents, guard¬ 
ians, and husbands that they enjoy the power of irritat¬ 
ing vows of those subject to them. 

All private vows not reserved to the Holy See may 
be dispensed from by local Ordinaries who enjoy ordinary 
power over their own subjects and peregrini. And since 
this power is ordinary, it may be communicated to 
others. 

Besides the Apostolic See may grant the power of dis¬ 
pensing to others, and it is generally understood that the 
confessors belonging to religious orders, i. e., regulars, 
are ipso facto endowed with this power, which, however, 
extends only to vows that are not reserved or do not 
trench on the rights of a third person. 

The commutation or change of a vow into something 
better, or equally good, is subject to the same rules as 
dispensation. 

2. Oaths 

1. An oath means the invocation of the Divine Name 
in witness of the truth of a statement. It cannot be taken 
except with truth, judgment, and justice. 

Oaths demanded or admitted by Canon Law cannot 
validly be taken by proxy. 

2. An assertory oath is one by which God is called 
upon to witness an assertion of a past or present fact; 


OATHS 


195 


a promissory oath, one by which God is called upon to 
witness the execution of a resolution, vow, or agreement. 
An oath, in general, obliges by reason of the virtue of 
religion, but a promissory oath, besides, follows the 
nature and conditions of the act to which it is attached, 
be it contract, stipulation, or simple agreement. 

3. The obligation of an oath ceases: 

i°. If it is condoned by the one in whose favor it was 
taken; 

2°. If the thing promised is substantially changed, or 
if, by reason of a change in the circumstances, the oath 
becomes sinful, or entirely indifferent, or an obstacle to 
a higher good; 

3 0 . If the final cause or condition under which the 
oath was taken has ceased to exist or failed; 

4 0 . By irritation, dispensation or commutation. 

PART IV 

THE TEACHING OFFICE OF THE CHURCH 

1. Jesus Christ has entrusted to the Church the deposit 
of faith, in order that, by the continual assistance of the 
Holy Ghost, she should preserve the revealed doctrine 
and expound it faithfully. 

The Church, independently of the civil authority, pos¬ 
sesses the right of teaching all nations. Correlative to 
this right is the duty of teaching men, and on their part 
the duty of obtaining a knowledge of the truth and em¬ 
bracing the Church of God. This obligation, incumbent 
on all, is derived from the divine law. 

The material object of the Church’s teaching office is 
the depositum hdei, which consists of the written word 
and tradition, guarded by the infallible custodian, the 


196 


THE TEACHING OFFICE 


Pope, and by the bishops, as teachers depending on the 
Roman Pontiff. 

2. To this right corresponds the duty of all the faithful 
to avoid danger to the faith and to make public profession 
of it when called upon. 

Opposed to the faith are three classes of persons: (a) 
heretics who, having been baptized, retain the name of 
Christians, but obstinately deny or doubt some of the 
truths that must be believed by divine or Catholic faith; 
(b) apostates, who have given up the Christian faith 
entirely and fallen away from it; (c) schismatics, who 
refuse to obey the Sovereign Pontiff or to live in union 
with those who submit to him. 

Catholics are warned against holding theological dis¬ 
putations and conferences with non-Catholics. To hold 
such a disputation or conference, especially in public, re¬ 
quires a special permission from the Holy See, or, in 
urgent cases, from the local Ordinary. 

TITLE XX 

PREACHING THE WORD OF GOD 

(Can. 1327-1351) 

I. The pastor is in duty bound to prepare the children 
of his flock for the reception of the Sacraments of Penance 
and Confirmation by a continuous course of instructions 
held at stated times each year, and to instruct the chil¬ 
dren with special care, if nothing prevents him, especially 
during Lent, in order that they may receive first Com¬ 
munion worthily. 

Besides instructing the Children, the pastor shall not 
neglect to instruct more fully in Christian doctrine the 


PREACHING 


197 

adolescent boys and girls who have already received their 
First Communion. 

On Sundays and other holy days of obligation he shall, 
at an hour convenient for the people, teach catechism 
also to his adult parishioners, in a manner adapted to 
their capacity. 

Parents are obliged to cooperate with the pastor, viz., 
to see to it that their subjects receive proper religious 
instruction. Besides, if the pastor is prevented, he may 
call upon other priests and clerics to help him, which 
they should do if they are not prevented. 

II. The faculty for preaching must be obtained from 
the local Ordinary. Priests of other dioceses can only 
be invited after the permission of the local Ordinary 
(in whose diocese the preaching is done) has been ob¬ 
tained. None but priests and deacons should be granted 
the faculty for preaching, and only after due examina¬ 
tion and investigation. 

Pastors are in duty bound to preach the word of God 
in the customary manner on all Sundays and holydays 
of obligation, especially during the Mass that is more 
largely attended. 

This obligation is personal and cannot be habitually 
committed to another, except for reasons recognized as 
sufficient by the Ordinary. 

The Ordinary may allow the sermon to be omitted on 
solemn feast-days, and, for good reasons, also on the one 
or other Sunday. 

During Lent, and, if expedient, also during Advent, 
sermons should be preached more frequently in cathedral 
and parish churches. 

The subject of the sermons should be the truths 
necessary for the faithful to believe in order to be saved. 


198 


THE TEACHING OFFICE 


Therefore preachers shall abstain from profane and ab¬ 
struse arguments which exceed the capacity of their 
hearers, and perform their evangelical ministry (as the 
Apostle warns) not in persuasive words of human wis¬ 
dom, or for the display of vain and ambitious eloquence, 
but to show the spirit and power; preaching, not them¬ 
selves, but Christ crucified. 

The faithful should be diligently admonished and ex¬ 
horted to hear sermons frequently. 

III. A mission should be held in every parish at least 
once every ten years. Pastors, including religious, must 
abide by the regulations of the local Ordinaries in this 
matter. 

Non-Catholics living in a diocese or parish are recom¬ 
mended to the benevolent attention of the bishop and the 
pastors, who should devise effective ways and means of 
bringing them back to the one true fold of Christ. This 
may be accomplished by spreading apologetic tracts, 
giving missions to non-Catholics, etc. 

No one should be compelled to embrace the Catholic 
faith against his will. 


TITLE XXI 

SEMINARIES 

1. The Church enjoys the imiate and exclusive right 
of training those who wish to devote themselves to the 
sacred ministry. 

2. The seminary tax must be paid by all who hold ec¬ 
clesiastical benefices, including religious, and by all par¬ 
ishes and quasi-parishes, even though they have no other 
income than the offerings of the faithful. This tax must 
be general and equal, proportionate to the needs of the 


SCHOOLS 


199 


seminary, and the maximum rate should not exceed live 
per cent, of the net income or capital taxed. This means 
that a poor parish which can barely exist, after the ex¬ 
penses for the support of the pastor and worship and re¬ 
pairs have been deducted, will have to pay very little for 
the seminary. Take, for instance, the income to be about 
$3000 ; we ask, what remains after the necessary expenses 
have been defrayed? Perhaps $200 or $300, which 
would mean $10 or $15 for the seminary tax. It appears 
to us a rather doubtful means for spreading religion and 
training an efficient clergy to erect luxurious palaces for 
seminarians who may afterwards have to be satisfied 
with fewer comforts, and to tax struggling parishes be¬ 
yond their means. “Sapienti sat”; complaints are heard 
everywhere. 37 

3. The seminary is exempt from the jurisdiction of the 
local pastor, whose place is taken by the rector or his 
delegate for all who live in the seminary, in all things 
except marriage and matters concerning which the Holy 
See may have provided differently. 

TITLE XXII 

SCHOOLS 

(Can. 1372-1383.) 

The promotion of education forms a creditable and 
honorable page in the annals of the Church. The Code 
demands: 

I. Religious and moral instruction for all the faithful. 

37 Dr. A. O’Malley’s saying (Keystones of Thought, page 19) 
is to the point: “The chief reasons why largely endowed uni¬ 
versities do little or no work are, that at first they, buy stones in¬ 
stead of learned men: later they make the professorship the pos¬ 
session of a social clique.” 


200 


THE TEACHING OFFICE 


They must be educated from childhood in such a way 
that not only are they taught nothing that is contrary to 
faith and morals, but that religious and moral training 
takes the first place in their training. 

2. Not only parents, but all who take their place, have 
the right and the solemn duty to provide a Christian 
education for the children entrusted to their care. 

In every elementary school religious instruction should 
be given to the children according to their age. Youths 
who frequent the secondary or higher schools should be 
given fuller instruction in Christian doctrine, and the 
local Ordinaries should see to it that this instruction is 
given by zealous and learned priests. 

Since neutral or non-confessional schools, which neces¬ 
sarily lack the fundamental principle of morality and 
sound pedagogy, are a real menace to the normal de¬ 
velopment of the human mind and will, it is evident that 
Catholic children should not frequent neutral or mixed 
schools, i. e., such as are open also to non-Catholics. It 
is for the local Ordinary to decide, according to the in¬ 
structions of the Apostolic See, in what circumstances and 
with what precautions attendance at such schools may be 
tolerated, without danger of perversion to the pupils. 

2. The Church claims and exercises the right to estab¬ 
lish schools, not only elementary, but also secondary and 
higher. The Code earnestly admonishes all in authority, 
especially the local Ordinaries, to establish Catholic 
schools, including universities in countries or districts 
where the existing universities are not imbued with 
Christian principles. 

The faithful should lend their aid, each according to 
his ability, in the establishment and support of Catholic 
schools. 

3. Finally, the Code demands ecclesiastical supervision 


CENSORSHIP OF BOOKS 


201 


of the religious instruction given to the young in all 
schools. This duty devolves more particularly on the 
local Ordinaries, who also have the right to approve 
teachers and textbooks of religion and to demand that 
teachers or books that offend against faith and morals, be 
removed. The Ordinaries are entitled, either personally 
or through delegates, to inspect the schools, oratories, 
asylums, orphanages, and similar institutions existing in 
their dioceses in all matters pertaining to religious and 
moral education. This right of inspection includes the 
schools of exempt religious, with the sole exception of 
purely internal schools intended for the members of ex¬ 
empt institutes. 


TITLE XXIII 

THE CENSORSHIP AND PROHIBITION OF BOOKS 

(Can. 1384-1405) 

I. The Church has the right to demand that the faith¬ 
ful shall not publish books which she has not previously 
approved by her judgment, and, for a just reason, to for¬ 
bid books published by whomsoever. 

The term hooks includes, so far as censorship is con¬ 
cerned, newspapers and periodical publications as well as 
all other published writings, unless the contrary is mani¬ 
fest. 

Previous censorship or the imprimatur is required: 

1. For all editions of, and exegetical commentaries on, 
the Bible; 

2. For all theological works, including ethical treatises 
and such as treat of theodicy, devotional and ascetical 


202 


THE TEACHING OFFICE 


books, and in general all books which concern faith and 
morals; 

3. For all sacred images printed with or without a text. 

The imprimatur is granted by the local Ordinary of 
the author, or by the local Ordinary of the place of pub¬ 
lication, or, finally, by the local Ordinary of the place 
where the book is printed. However, if any one of 
these Ordinaries refuses the imprimatur, the author is 
not allowed to ask it of another, unless the latter has been 
informed of the refusal. 

Clerics and laymen require a permission for the publi¬ 
cation of, or cooperation in publishing books as follows: 

The secular clergy without the consent of their Or¬ 
dinary, and religious without the permission of their 
higher superior and of the local Ordinary, are forbidden 
to publish books on secular subjects, and to write for 
newspapers or other periodical publications, or to act as 
editors of such. 

Not even Catholic laymen—much less clergymen and 
religious—may write for newspapers or other periodical 
publications which are accustomed to attack the Catholic 
faith or good morals. An exception to this rule may 
be made only for a just and valid reason, acknowledged 
to be such by the local Ordinary. 

There ought to be more than one diocesan censor. 

II. The right and duty to forbid books for a just cause 
belongs to the supreme ecclesiastical authority for the 
whole Church, and to particular councils and local Or¬ 
dinaries for their respective subjects. 

Recourse from this prohibition may be had to the 
Apostolic See, but only in devolutivo. 

Books condemned by the Apostolic See must be con¬ 
sidered as forbidden everywhere and in whatever lan¬ 
guage they may appear. 


CENSORSHIP OF BOOKS 


203 


Officials, and, under certain conditions, all the faithful 
are obliged to denounce pernicious books to the ecclesi¬ 
astical authorities. 

A forbidden book may not be published, read, kept, 
sold, or translated into another language, or communicated 
to others in any way. 

A forbidden book may not be republished until after 
it has been corrected and the one who forbade it, or his 
superior or successor, has granted permission to publish 
it. 

The list of forbidden books comprises the following: 

1. Editions of the original text and of ancient Cath¬ 
olic versions of Ploly Scripture, including those of the 
Oriental Church, which have been published by non-Cath- 
olics; also translations of the same into any language, 
when made or published by non-Catholics. 

2. The books of writers defending or championing 
heresy and schism, or attempting in any way to under¬ 
mine the foundations of religion. 

3. Books which purposely attack religion or good 
morals. 

“Data opera” appears to mean the same as “ex pro - 
fesso,” and is opposed to such expressions as perfunctorie 
and obiter. It may be, however, that data opera is in¬ 
tended to signify the intention. 

4. Books by non-Catholics which professedly treat of 
religion, unless it is certain that they contain nothing 
contrary to the Catholic faith. 

5. Bibles and biblical annotations and commentaries, 
modern translations of the Bible, i. e., into the vernacular, 
and all books mentioned in can. 1385, § 1, n. 2, and books 
or booklets which narrate new apparitions, revelations, 
visions, prophecies, miracles, or aim to introduce new de¬ 
votions, even though they pretend to be purely private, 


204 


THE TEACHING OFFICE 


if published without regard to the rules prescribed, i. e., 
without complying with the law of previous censorship. 

6. Books which attack or ridicule any dogma of the 
Catholic Church; or defend errors that have been pro¬ 
scribed by the Apostolic See, i. e., by the Pope him¬ 
self, or by any one of the S. Roman Congregations; or 
disparage divine worship; or seek to undermine ecclesi¬ 
astical discipline; or of set purpose insult the ecclesias¬ 
tical hierarchy or the clerical or religious state. 

7. Books which teach or approve any kind of super¬ 
stition, fortune-telling, divination, magic, the evocation 
of spirits, and other similar practices. 

8. Books which defend the lawfulness of dueling or 
suicide or divorce; or which try to prove that Free¬ 
masonry and other similar sects are useful and not detri¬ 
mental to Church and State. 

9. Books which, of set purpose, treat of, relate, or in¬ 
culcate lascivious and obscene things. To this group 
belongs the whole class of strictly so-called pornographic 
literature as well as innumerable romances, novels, and 
poems. 

10. Editions of liturgical books approved by the Apos¬ 
tolic See, which have been altered so as no longer to 
agree with the authentic text. 

11. Books which spread apocryphal indulgences or in¬ 
dulgences that have been proscribed or recalled by the 
Holy See. 

12. Images, however printed, of our Lord Jesus Christ, 
the Blessed Virgin Mary, the Angels, the Saints, and 
other Servants of God, which are not in keeping with the 
spirit or decrees of the Church. 

The permission to make use of forbidden books is 
granted, by law, to theological or biblical students with 
regard to editions of the original text of Holy Scripture, 


PROFESSION OF FAITH 


205 


of ancient versions made by non-Catholics, and trans¬ 
lations into the vernacular made and published either by 
non-Catholics or by Catholics without previous censor¬ 
ship;—provided, however, that these editions are faith¬ 
ful and entire, and that neither the introduction nor the 
annotations attack Catholic dogma. 

Ordinaries may grant permission to their subjects to 
read books forbidden either by law (i. e., by the Code) 
or by special decree of the Apostolic See, but they can 
impart this faculty only for individual books and in 
urgent cases. But the license to read forbidden books 
does not in any way exempt a man from the prohibition 
of the natural law against books which are to him a 
proximate occasion of sin. Therefore, the local Or¬ 
dinaries and all those in charge of souls should warn the 
faithful of the danger and injury caused by reading 
bad, especially forbidden, books. 

TITLE XXIV 

PROFESSION OF FAITH 

(Can. 1406-1408) 

Vicars-general, diocesan consultors, pastors and all 
priests—therefore also assistants or curates—entrusted 
with the care of souls, confessors and preachers, before 
they obtain the faculty, must make a profession of faith 
in the presence of their Ordinary or his delegate. 

The formula now prescribed is found in the Code . 38 

This profession must be repeated whenever one as¬ 
sumes a new office, benefice or dignity, after giving up 
the former, even if the new office is of the same species. 

38 See our Commentary, Vol. I, page 69 ff. and Appendix. 


206 


BENEFICES 


PART V 

BENEFICES AND OTHER NON-CORPORATE 
ECCLESIASTICAL INSTITUTES 

(Can. 1409-1494) 

What falls under this heading, so far as it concerns 
our pastors, has partly been inserted in the tract on 
ecclesiastical offices and organizations. We may, how¬ 
ever, be permitted to state that what we maintained in 
Vol. VI, p. 495, of our Commentary, that our American 
parishes arc benefices, has been corroborated by a decision 
communicated to his Eminence Cardinal Bonzano, the 
late Apostolic Delegate, and forwarded by him to all the 
Ordinaries, Nov. 10, 1922. The passage in question 
reads: “His Eminence, the President of the Commission, 
added, moreover, that a parish is always an ecclesiastical 
benefice, according to can. 1411, 5, whether it has the 
proper endowment (resources or revenue) as described 
and defined in can. 1410, or even if, lacking such endow¬ 
ment (resources or revenue), it be erected according to 
the provisions of can. 1415, 3.” Since, then, our parishes 
are considered benefices in the canonical sense of the term, 
it will not be amiss here to set forth the more important 
rules which regulate the erection and change of benefices. 

1. As requisites for erecting a benefice the Code de¬ 
mands : 

a) A stable endowment, such as defined by can. 1410, 
which admits any kind of property, contributions, vol¬ 
untary offerings of the faithful, stole fees, and even choir 
distributions to the amount of the third part. Can. 1415, 
§ 3, says, “It is not forbidden to establish a parish or 
quasi-parish, even if a sufficient endowment is not im- 


PARISH BENEFICES 


20 7 


mediately available, provided it can be reasonably fore¬ 
seen that the necessary support will be forthcoming.” 

b) The Code also requires—although it does not say 
that the omission of this formality would involve in¬ 
validity 39 —that those who are interested in its erection 
should be invited and heard. This includes parishioners 
and others who may suffer detriment, for instance, pas¬ 
tors. 

c) Lastly, can. 1418 demands a legal document, in 
which the place of the benefice is designated, and the en¬ 
dowment, rights and obligations are described, also 
eventual conditions laid down by the founder, if accept¬ 
able. 

2. Concerning union of benefices, the Code allows local 
Ordinaries to unite, either aeque or minus principaliter, 
parish churches with one another or with non-curate 
benefices. 

3. Ordinaries may, for a just and canonical reason, 
divide parishes of any kind by establishing a perpetual 
chaplaincy or a new parish, or dismembering the terri¬ 
tory of parishes; and they may do so even against the 
will of the rectors of the parishes, and without the con¬ 
sent of the people. But the Code requires a canonical 
reason, without which the division would be invalid. 
And the canonical reason, as we have already said, is two¬ 
fold : either great difficulty on the part of the people to 
come to the parish church, or impossibility of properly 
attending to their spiritual needs because of too great 
a number. 

39 This is to be judged from can. 105, 1, where it is said that 
“de consilio consultorum,” or “audito Capitulo, parocho” means 
that the Superior is obliged to hear their advice, though not bound 
to follow it, ad valide agendum ; consequently, the omission might 
be construed as involving invalidity. 


208 


BENEFICES 


4. Ordinaries may also transfer the seat of a secular 
parochial benefice to another place; but other benefices 
they may transfer to the mother church, or to another 
church of the same or near-by place, only if the church 
in which said benefices were founded has collapsed and 
cannot be restored. 

Can. 1422 regulates the change of religious benefices, 
viz., such as have been incorporated with religious by the 
Apostolic See. Of these the Code says: “The union, 
whether aeque or minus principalis, of a religious with a 
secular benefice, or vice versa, and the transfer, division, 
and dismemberment of benefices belonging to religious, 
are reserved to the Apostolic See A 40 

5. As to resignation, the following rules must be ob¬ 
served : 

a) The resigner must state expressly whether or not 
the benefice was one on the title of which he had been 
ordained; if it was the titulus ordinationis, his resignation 
cannot be accepted unless it be solidly (if necessary by 
oath) proved that the resigner has other means of sup¬ 
port, otherwise the resignation is invalid; 

b) If another title, for instance, patrimony, was sub¬ 
stituted, this fact, too, must be established beyond reason¬ 
able doubt; 

c) The consent of the Ordinary into whose hands the 
benefice was resigned must be given by means of a 
declaration that the substitution of the title has been law¬ 
fully made; 

d) Conditional resignation, especially in favor of an- 

40 The footnote on page 509 of Vol. VI of our Commentary, 
note 15, should, therefore, read: Can. 1422 requires a papal in- 
dult for dividing such parishes;—the former practice and can. 
1427 were deceiving; can. 1422 is logical. 


PARISH BENEFICES 


209 

other, is forbidden, on account of the danger of hered¬ 
itary succession. 

6. An exchange or a mutual transfer of benefices can 
be made under the following conditions, laid down by the 
Code in can. 1487 f.: 

a) That no other interested persons suffer detriment 
therefrom; 

b) That if the benefice be one of advowson, the con¬ 
sent of the patron be obtained; 

c) That the exchange be made with the permission 
of the local Ordinary, or, more accurately speaking, of 
the Bishop, because the vicar-general needs a special 
mandate, and the vicar-capitular cannot give the permis¬ 
sion at all; 

d) That it be made either in writing or before two 
witnesses. Exchange of benefices reserved to the Holy 
See requires a papal indult. 

Concerning non-corporate institutions the Code allows 
the local Ordinary to erect hospitals, orphanages, and 
similar institutions destined for religious or charitable 
purposes and to endow such institutions with the charac¬ 
ter of ecclesiastical corporations exempt from the parish- 
organization (can. 462, § 2). 

PART VI 

THE TEMPORAL POSSESSIONS OF THE 

CHURCH 

The Catholic Church and the Apostolic See have the 
inherent right, freely and independently of any civil 
power, to acquire, retain, and administer temporal goods 
for the pursuit of their own ends. 

Individual churches and other corporations, established 


210 


CHURCH PROPERTY 


as such by ecclesiastical authority, are also endowed with 
the right of acquiring, retaining, and administering their 
own property according to Canon Law. 

To the Church must also be vindicated, independently 
of any civil power, the right to demand of the faithful 
whatever is necessary for divine worship, for the sup¬ 
port of her clergy and other servants, and for the pur¬ 
suit of her proper ends, to which also belong schools. 

TITLE XXVII 

ACQUISITION OF ECCLESIASTICAL PROPERTY 

(Can. 1499-1517) 

1. The Church has the right of acquiring property by 
all just means permitted either by natural or positive 
law to other citizens or individuals, e. g., by contract, 
donation, inheritance, etc. 

2. A division of property should be made according to 
the principles of justice and equity. Not only the prop¬ 
erty, but also the debts, should be equally divided. This 
rule is to be observed also in dividing parishes. 

3. There is also a canon (1503) which treats of collect¬ 
ing for ecclesiastical or charitable purposes. Private 
persons, whether clerics or laymen, are forbidden to col¬ 
lect alms for any charitable or ecclesiastical institution or 
purpose, unless they have the written permission of the 
Apostolic See, or that of their own and of the local Or¬ 
dinary. Who are the private persons here intended ? 
All those who beg without official or public capacity, 
authority or warrant, no matter whether they belong to 
the ranks of the clergy or of the laity. A pastor is no 
private person, and may therefore collect within the 
boundaries of his parish, but not beyond these, without 


THE CATHEDRATICUM 


2II 


special permission, because he has no official capacity 
outside his own district. It is a wise ruling, and in keep¬ 
ing with our canon, if diocesan statutes forbid priests 
in charge of souls to collect either directly or indirectly, 
for instance, by selling tickets or chances. The so-called 
chain-letters belong in the waste-basket. 

If a corporation is chartered by the State, though 
under ecclesiastical supervision, it cannot be called a 
private enterprise, and, therefore, can. 1503, which for¬ 
bids private persons to collect, should not be invoked 
against it, with due attention to what we said above. 
Note that the Code does not distinguish between personal 
or oral quest and begging by letters. Hence it includes 
both kinds. There is an unspeakable and a cunning way 
of begging— et inhnitus est numerus stultorum —witness 
the oil-stock victims! 

4. The cathedraticum is a sign of subjection to the 
local Ordinary, but not, properly speaking, a means of 
supporting the bishop. Who must pay it? 

a) All churches and public oratories subject to epis¬ 
copal jurisdiction must pay the cathedraticum, even 
though they may not have been subject to it formerly. 
This rule certainly applies to all churches governed by 
secular clergy. Churches or public oratories in which 
exempt religious hold services for themselves only, and 
not for outsiders, or for these only per accidens, need not 
pay the cathedraticum. But if exempt religious have 
a parish church, even though it be an abbey of a con¬ 
vent church, or an incorporated public oratory, and even 
though one of their own number acts as pastor or chap¬ 
lain, they are obliged to pay this tax. 

b) All holders of benefices not exempt from episcopal 
jurisdiction must pay the cathedraticum. 

c) Lay confraternities must pay the cathedraticum if 



212 


CHURCH PROPERTY 


they own, not merely a chapel erected in honor of a 
Saint in some church, but a church or public oratory of 
their own, even though no benefice is connected with it. 

The amount of this tribute was formerly established 
at two solidi (about $6) a year; but the Code leaves it 
to be determined by provincial councils. 

A recent decision of the S. C. Concilii throws some 
light on this subject. A French bishop had asked per¬ 
mission to demand two per cent, of each Catholic, so that, 
for instance, a parish with 500 souls would pay ten francs, 
a parish with 1000 souls, twenty francs, and so on, in 
proportion to the numerical strength of each parish. 
The sum appeared rather small, still the S. Congregation 
held that the cathedraticum, which should be a moderate 
and uniform “tax,” should not be made a personal, pe¬ 
cuniary tribute, as this would be entirely foreign to the 
very notion of cathedraticum. The answer, therefore, 
was: “Prout exponitur, non expedire . 41 The S. Con¬ 
gregation advised the bishop to recur to another ex¬ 
pedient, if necessary, viz., a charitable subsidy. We 
mention this decision because sometimes the cathedrati¬ 
cum is imposed by the Bishop simply because he needs 
money. Such is not the idea of that contribution. Be¬ 
sides, according to can. 1507, the cathedraticum must 
be fixed by a provincial council or meeting of the bishops 
of the province, and the approval of the Apostolic See 
must be obtained before any fixed rate takes effect. 
This also applies to other taxes. Hence, even if diocesan 
statutes should fix these taxes, they do not bind unless can. 
1507 has been duly complied with. 

41 March 13, 1920 (A. Ap. S., XII, 446) : “Liquet hac ratione 
non haberi merum signum recognitionis honoris, sed verum tribu - 
turn fiscale, a quo indoles cathedratici maxime aibhorret.” 


THE SUBSIDIUM CARITATIVUM 213 


5. Subsidium caritativum .—When there are particular 
diocesan needs, the local Ordinary (not the vicar-gen¬ 
eral) may demand, besides the seminaristicum and the 
pension (mentioned in can. 1429), a contribution from 
all beneficiaries, secular as well as religious; but this con¬ 
tribution must be moderate and can be demanded only 
on extraordinary occasions, and, therefore, differs from 
the regular diocesan taxes, though it may be demanded in 
justice and under threat of penalty. 

Ordinaries are forbidden to impose any other tax be¬ 
sides those mentioned for the benefit of the diocese or 
of a patron (advowee) upon churches, benefices, and 
other ecclesiastical institutions, subject to their jurisdic¬ 
tion, except on the occasion of their foundation or conse¬ 
cration. 

It may be worth while to clear up some erroneous ideas 
concerning the nature and extent of such extraordinary 
taxation. 

a) We comprise all these extraordinary taxes un¬ 
der the name of subsidium caritativum , which, no doubt, 42 
is the subject of can. 1505. We exclude, of course, di¬ 
ocesan collections which have not an extraordinary, but 
a stable, character. But we include all special or par¬ 
ticular assessments, or subscriptions, or “drives,” or 
whatever term this subsidy may go by. It is defined by 
canonists as an extraordinary tax imposed upon subjects, 
for a manifest and reasonable cause, and demanded in 
a charitable rather than coercive manner. However, most 
of the canonists agree that this way of collecting the tax 
does not exclude compulsory means, and, if necessary, 

42 This is clearly indicated by the scources which Card. Gasparri 
quotes from the Decretals of Gregory IX, viz., c. 6, X, III, 39. 
and the S. C. C. 


214 


CHURCH PROPERTY 


even censures. 43 The Code, indeed, has not provided for 
a special penalty in this case, although can. 2331, § 1, and 
can. 2347 might be alleged in its support. But it is not 
too much to say that censures should be rarely em¬ 
ployed. 

b) What are the reasons that may justify the imposi¬ 
tion of such a tax? Can. 1505 uses the general phrase: 
“when a special need should press the diocese” ( speciaii 
dioecesis necessitate impellente). This phrase was un¬ 
derstood by former authors 44 as including the follow¬ 
ing: expenses incurred on the occasion of the consecration 
and installation of the bishop; great indebtedness incurred 
by the bishop for the utility or necessity of the whole 
diocese or the cathedral church; expenses made for the 
episcopal visit ad limina or to a council, either general 
or provincial. All this goes to show that the diocese as 
such (at large) must be concerned; that the need must 
be a real, not a fancied one; that a solitary religious or 
charitable institution, though it may be useful to the dio¬ 
cese, if it is not an institution established by and for 
the diocese, cannot lay any claim to being subsidized by 
this means; that personal debts contracted by the bishop 
as a private person are not to be paid by means of 
a charitable subsidy, such as the canon permits. 

c) What is the amount that may be demanded? Our 
text simply says that it should be a moderate tax and 
extraordinary, i, e., not of frequent occurrence. The 
canonists abstained from giving a fixed sum. One of 
them states that, since the law has not determined the 
amount, it should be gauged by custom, the income of the 
diocese, and the extent of the need for which it is de- 

43 Barbosa, De Officio Episcopi, Allegatio LXXXVII, n. 5; 
Schmalzgrueber, in lib. Ill, tit. 39, n. 54. 

44 Barbosa, l. c., nn. 29 ff. 


THE SUBSIDIUM CARITATIVUM 


manded. 45 However, there is another limit to the amount, 
as will be seen from the following answer to the question: 

d) Who must pay this tax? —The answer is clearly 
given in can. 1505* “all beneficiaries, whether secular or 
religious.” Hence, evidently, laymen cannot be com¬ 
pelled to pay this tax, neither can monasteries or religious 
houses, as they are not benefices . 46 If religious hold or 
administer a parish either in their own name or in the 
name of the Ordinary—provided, in this latter case, 
they draw the salary of a real beneficiary—they are 
obliged to pay the tax like the secular clergy and to the 
same, not larger, amount. In a word, all pastors must 
pay it. Whether assistants or curates are obliged to pay 
it, is not so easily and clearly to be deduced from the text. 
For, although our parishes, if established in accordance 
with the Code (can. 1410, 1415, § 3), are and have been 
declared benefices, it does not follow that our curacies 
come up to the requisites of benefices; this is a point 
still to be settled. However, since they in one way or an¬ 
other share in the revenues of the benefice, or parish, they 
appear to be liable to taxation, provided, of course, that 
the amount demanded is in strict proportion to the salary 
drawn, and that it is less than the amount paid by 
the pastors. We repeat that, since laymen cannot be 
compelled to pay this tax, it is evident that the parish as 
such is not liable to the payment, because the Code ex¬ 
pressly says that only beneficiaries may be taxed, and the 
parish as such is not a beneficiary in the canonical sense 
of the term. Furthermore, since beneficiaries are liable 
as such, it is evident that the pastors or curates cannot be 
taxed on their private means, such as patrimonial or 
quasi-patrimonial property, income, or revenues. Only 

45 Schmalzgrueber, /. c., n. 70. 

46 Id., /. c., nn. 63 ff.; Barbosa, /. c., nn. 39 ff. 


216 


CHURCH PROPERTY 


what is connected with or flows from the benefice is sub¬ 
ject to this tax. Besides, canonists as well as a decision 
of the S. C. Concilii make it plain that poorly salaried 
beneficiaries, whose income is barely sufficient for a decent 
livelihood, cannot be compelled to pay the subsidy de¬ 
manded. 47 

Attention should be paid to the term “beneficiaries” 
also for another reason. Where there is no proper 
canonical division of parishes with set boundaries, it 
would be rather difficult to apply the term “benefice” to a 
parish. The consequence is quite evident: in dioceses 
which have no such division, there are no benefices in the 
canonical sense of the word, hence no beneficiaries, and, 
therefore, no strict right to demand such a tax, nor any 
obligation to pay it. Vide ant consules! Finally it will 
be well to observe can. 216. 

We add that the canonists demand of the bishop 
that he ask the advice of the cathedral chapter (our dio¬ 
cesan consultors) before imposing such a tax. Also the 
vicar-capitular (our administrator) sede vacante may 
levy the subsidy; and consequently those who enjoy the 
same power as administrators. 48 

47 Barbosa, l. c., n. 49; Schmalzgrueber, /. c., n. 65. Here the 
text of the .S'. C. Concilii, in Gernndinensi, 27 Feb., 1663, quoted 
by Card. Gasparri: I. “An episcopi pingues reditus habentes . . . 
possint exigcre subsidiurn caritativum a suis clericis dioecesanis? 
II. An episcopi, quibus pro exigendo snbsidio caritativo non 
obstat suMcientia sive exuberantia redituum, possint illud exigcre 
nulla urgente causa et inconsultis eorum capitulisf III. An pos¬ 
sint illud cxigere a clericis benedciatis, qui licet aliquos reditus 
habcant non consistentes in distributionibus quotidianis, nihil 
tamen eis superest ultra hone stum victum, immo tales reditus vix 
sunt sufdcientes ad praedictum eorum victum? —.S'. C. resp. ad I, 
II et III negative.” 

48 Barbosa, l. c., n. 13; Schmalzgrueber, /. c., n. 57. 


PRESCRIPTION 


217 


There is one more question attached to charitable sub¬ 
sidy, viz., that of providing for needy priests. This would 
undoubtedly fall under the heading of can. 1505, in case 
the diocesan funds should be insufficient to make ends 
meet. But in this case what has been said as to the nature 
and extent of this subsidy must logically be applied also 
to the raising of the amount required to cover the def¬ 
icit. Therefore it must be a moderate and extraordinary 
tax to be levied on the beneficiaries, not the parishes. 
—But if there is a clerical aid society with its own funds 
and administration,—a society, we mean, which is intended 
for secular priests in case of need,—it does not appear 
quite just to demand of religious who are pastors contribu¬ 
tions from which they derive no benefit at all, because 
religious are generally taken care of by their respective 
communities. Thereby, as stated, we do not deny that 
the local Ordinary would be entitled to demand of the 
religious beneficiaries, as explained above, the subsidy 
based on can. 1505, and as far as this canon permits, also 
in case the funds of the clerical aid society should run so 
low that an extraordinary tax became imperative, pro¬ 
vided it be moderate. 49 

6. Prescription, as admitted by the civil law, is a legiti¬ 
mate way of acquiring title to property by long-continued 
and uninterrupted possession. It also means freeing one¬ 
self from an obligation due to another, for instance, 
tithes or pension or servitude (lease), in which latter 
case the term signifies the loss or curtailing of property 
right, brought about by failure to assert the same within 
a given time. Finally, prescription also signifies the 
period or time required for legal acquisition or loss of 
this right. 

49 See Vol. VII of our Commentary, pp. 434 ff., where we 
discuss the disabled priests’ funds. 


218 


CHURCH PROPERTY 


Even sacred things owned by private persons may be 
acquired by prescription, but they may not be used for 
profane purposes, unless they have lost their consecration 
or blessing, and even then the use to which they are put 
must not be unbecoming ( sordidus ). Sacred objects 
which are not owned by private persons cannot be ac¬ 
quired by prescription by a private, but only by a juridi¬ 
cal, person. 

Not subject to prescription are: (i) Things pertaining 
to natural or divine law; (2) those obtained by an apos¬ 
tolic privilege; (3) spiritual rights of which laymen are 
incapable; (4) certain and undisputed boundary lines of 
ecclesiastical provinces, dioceses, parishes, vicariates and 
prefectures apostolic, abbacies and prelacies nullius; (5) 
Mass stipends and obligations; (6) ecclesiastical bene¬ 
fices; (7) the right of canonical visitation and obedience, 
so that the subjects could not be visited by any prelate 
or would not be under obedience to any prelate; (8) the 
cathedraticum. 

Prescription is not valid unless it is based upon good 
faith at the beginning as well as throughout the whole 
period required. 

7. Legacies and Donations. —He who, by natural and 
ecclesiastical law, is free to dispose of his property, may 
bequeath the same, either by donation or last will and 
testament, to pious institutions or causes. 

Testamentary bequests in favor of the Church should, 
if possible, be made in legal form , i. e., according to the 
rules prescribed by civil law. If this precaution has been 
omitted, the heirs must be admonished to carry out the 
testator’s will. Ordinaries should carefully watch over 
this matter. If a cleric or religious receives a donation 
or a bequest in trust, he must notify his Ordinary of the 


ADMINISTRATION 


219 


fact and indicate to him all the property held in trust, 
movable as well as immovable, together with the obliga¬ 
tions attached thereto. Should a donor have expressly 
forbidden the intervention of the Ordinary, no religious 
or cleric can accept the bequest or donation. 

The Ordinary must insist that the property held in 
trust be safely invested, and watch over the fulfillment 
of the testator’s will. 

To reduce, mitigate, or change testamentary bequests 
in favor of the Church is a right reserved to the Apos¬ 
tolic See, which can proceed only for a just and necessary 
cause. The local Ordinary may act only if the founder 
has expressly granted this power to him, and he, too, 
is bound by reasons of justice and necessity, for both the 
natural and the divine as well as the positive law demand 
that the last will of the faithful be conscientiously ex¬ 
ecuted and the money bequeathed by them expended for 
those purposes for which it was intended. It may not 
be applied to a seemingly better cause, or in a more suit¬ 
able manner, because such a change would frustrate the 
last will of the testator and injure the Church, since the 
faithful would hesitate to make donations if they were 
not certain that the money would be applied in accord¬ 
ance with their wishes. 

TITLE XXVIII 

ADMINISTRATION OF CHURCH PROPERTY 

(Can. 1518-1528) 

1. The Roman Pontiff is the supreme administrator 
and steward of all church property. 

2. Every Ordinary should establish in his episcopal 


220 


CHURCH PROPERTY 


city a board of administrators, consisting of the presi¬ 
dent, who is the bishop himself, and two or three capable 
men, experienced also in civil law, if possible, to be ap¬ 
pointed by the Ordinary after having heard the advice 
of his chapter (consultors). Should there be in the 
diocese a particular law or custom which provides another, 
equally effective mode of administration, this may be re¬ 
tained. 

If the charter or the will of the local Ordinary calls 
upon laymen to take part in the administration of ec¬ 
clesiastical property, the whole administration must 
nevertheless be conducted in the name of the Church, and 
the Ordinary’s right of visitation and of demanding a 
regular account and prescribing the mode of administra¬ 
tion must be safeguarded. 

3. A fair zvage —which, now-a-days, means a living 
wage—must be paid to workingmen. All administrators, 
especially clerics and religious, must pay their employees 
a just and adequate wage; they should also see to it that 
the workingmen be given a convenient time for fulfilling 
their religious duties; they should never keep them from 
their domestic duties or from habits of thrift, nor impose 
upon them more work than their strength, age or sex 
enables them to perform. We think, housekeepers, too, 
should experience the benefit of this canon. 

4. Administrators of church property must not in¬ 
stitute or contest a lazvsuit in the name of the Church 
without written permission from the local Ordinary, or, 
in urgent cases, from the rural dean, who shall immedi¬ 
ately inform the Ordinary when he has granted such a 
permission. If they disregard his advice and are 
defeated in a lawsuit, they are bound in conscience 
and by ecclesiastical law to make up for the loss sus¬ 
tained. 


CONTRACTS 


221 


TITLE XXIX 

CONTRACTS 

(Can. 1529-1543) 

1. Whatever the civil law of a country determines with 
regard to contracts, general and specific, named and 
nameless, as well as payments, shall be observed also in 
ecclesiastical law and with the same legal effects, unless 
the civil law runs counter to the divine law or the canons 
provide otherwise. 

2. Alienation is allowed under these conditions: (a) 
after appraisement; (b) for a just cause; and (c) with 
the permission of the competent superior, viz., the local 
Ordinary or the Apostolic See, according to the follow¬ 
ing regulations: 

i.° The Apostolic See, i. e., the S. C. Concilii (can. 250, 
§ 2), if (a) precious things of any kind or amount are 
to be alienated; or (b) property is to be disposed of, the 
value of which exceeds the sum of 30,000 lire (or 
francs), i.e., about $6,000 to $10,000, must grant per¬ 
mission by a rescript; 

2. 0 If the value of the property to be alienated does 
not exceed the sum of 1,000 lire (or francs), i. e., about 
$200, the local Ordinary may proceed after having heard 
the advice of the board of administrators—unless the 
property is of little value—and with the consent of those 
concerned. 

3. 0 If the value of the property to be alienated is be¬ 
tween 1,000 and 30,000 lire (or francs), the local Ordi¬ 
nary may proceed, provided a threefold consent has been 
obtained, viz., (1) that of the cathedral chapter (or dio¬ 
cesan consultors), which must be given collegialiter, i.e., 
by vote at a meeting; (2) the consent of the board of 


222 


CHURCH PROPERTY 


administrators; and (3) that of the persons concerned. 
The penalties are stated in can. 2347. 

3. Donations .—Prelates and rectors are allowed to 
make only small and moderate donations from the mov¬ 
able property of the Church, according to legitimate local 
custom; large donations may be made only for a just 
reason, as a reward for piety, or Christian charity. 
Donations made against this rule may be revoked by the 
successors. 

Donations made to rectors of churches, secular or re¬ 
ligious, are supposed to be made to the Church, unless 
there is reason to presume the contrary. In order law¬ 
fully to refuse a donation made to a church, the rector or 
superior of the same needs the permission of the Ordi¬ 
nary. An illegal refusal, if it results in loss, justifies an 
action for restitution in integrum, or indemnity. 

4. Debts and mortgages can be contracted only with 
the permission of the local Ordinary, who shall first con¬ 
sult the administrators and rectors. 

5. Sale and exchange .—The administrator may con¬ 
vert notes payable to bearer into other titles or invest¬ 
ments, which are safer than, or at least equally safe and 
profitable as, the former. In doing so, however, they 
must avoid every species of trading or speculation, and, 
besides, obtain the previous consent of their Ordinary, of 
the diocesan board of administrators, and other interested 
persons. 

6. Lease or Rent .—Land belonging to a church should 
not be rented except by public auction or announcement, 
and exact conditions must be laid down in the lease or 
rent contract as to boundaries, appropriate methods of 
cultivation, payment of rent, and the necessary safeguards 
for the fulfillment of the conditions. 

Anticipated payments being excluded, the following 


CONTRACTS 


223 

rules must be observed in leasing or renting church 
property: 

i.° If the rental exceeds 30,000 lire (or francs), and 
the lease is made for more than nine years, a papal indull 
is required; if the contract is made for less than 
nine years, the local Ordinary may give permission 
with the consent of his cathedral chapter (or diocesan 
consultors), the board of administrators, and those in¬ 
terested. 

t 

2° If the rental is between 1,000 and 30,000 lire (or 
francs), and the lease runs more than nine years, the 
local Ordinary may grant permission with the consent 
of those just mentioned; but if the contract is made for 
less than nine years, the local Ordinary has only to con¬ 
sult with the board of administrators and obtain the con¬ 
sent of those concerned. 

3. 0 If the rental is less than 1,000 lire (or francs), 
and the contract reads for more than nine years, the 
local Ordinary must consult with the board of admin¬ 
istrators and obtain the consent of those concerned; if the 
contract is for nine years or less, the administratois 
themselves may sign the contract and notify the Ordi¬ 
nary. 

If fungible things are given to a person in such a way 
that he becomes the owner thereof, and are restored in 
kind to the same amount, no interest can be demanded 
by reason of the contract itself, for it would be usury to 
demand back more than was given (“nihil in mutuo z>* 
mutui accipiendum ultra sortem principalem >> ). How¬ 
ever, it is not per se forbidden to make loans under the 
usual legal conditions, provided no excessive interest is 
charged; nor is it forbidden to stipulate a higher rate 
of interest if a just and proportionate reason can be ad¬ 
vanced. 


224 


CHURCH PROPERTY 


TITLE XXX 

PIOUS FOUNDATIONS 

(Can. 1544 - 1551 ) 

The term “pious foundation” signifies temporal goods 
conveyed to some ecclesiastical juridical person with the 
perpetual or long-continued obligation to say Masses, or 
to perform certain ecclesiastical functions or works of 
piety or charity, in consideration of the revenues from 
said endowment. Hence every foundation, after it has 
been duly accepted, has the nature of a bilateral contract: 
“do nt facias” And for the valid acceptance of such 
obligations the written consent of the local Ordinary is 
required; he also fixes the minimum of endowment be¬ 
low which no pious foundation may be accepted, as well 
as the manner in which the interest is to be distributed. 
The endowment itself must be safely deposited or se¬ 
curely invested, according to the regulations of the Or¬ 
dinary. 

Two records must be drawn up, one to be kept in the 
diocesan archives, the other in the archives of the in¬ 
stitution which is obliged to fulfill the obligation; this 
institution or church must also have a list of all the 
obligations to be kept in the safe of the rectory. 

The reduction of obligations arising from pious founda¬ 
tions is reserved to the Apostolic See, unless the Ordi¬ 
nary enjoys the faculty to so do. This faculty may be 
obtained from the X C. Concilii. 


BOOK IV 

ECCLESIASTICAL TRIALS 

The Code divides Book IV into three parts: (I) Ec¬ 
clesiastical Procedure, (II) Beatification and Canoniza¬ 
tion, (III) Procedure in particular cases. The scope of 
this work permits us to be brief on these points, because 
it may be reasonably presumed that few pastors are, either 
actively or passively interested in them. 

PART I 

ECCLESIASTICAL PROCEDURE 

The Code defines an ecclesiastical trial (indicium eccle- 
siaticum) as the lawful discussion and settlement before 
the ecclesiastical court of a disputed matter, of which 
the Church is entitled to take cognizance. 

By reason of its purpose a trial is either civil or crim¬ 
inal. Civil (contentiosum) is one that concerns a private 
interest, as, for instance, a damage suit which may be 
brought to court by individuals as well as corporations. 

The ecclesiastical court claims the right of judging ex¬ 
clusively: (a) all spiritual matters and such as might per 
se be called temporal, but are intimately connected with 
the spiritual, such as advowson, church revenues, eccle¬ 
siastical burial, legitimacy of children, real immunity, 
etc.; (b) all cases of violation of ecclesiastical laws and 
all matters in which the question of sin is involved, in 
so far as the determination of guilt and the infliction of 

225 


226 


ECCLESIASTICAL TRIALS 


ecclesiastical punishments comes into play; (c) all cases 
concerning persons who enjoy the privilegium fori, or 
privilege of an ecclesiastical court in matters civil as well 
as criminal. 

Besides the mode of procedure which is peculiar to the 
Holy Office, all other tribunals—including diocesan courts 
—must observe the laws laid down in this fourth Book of 
the Code, which has two sections, one devoted to '‘Trials 
in General,” the other to “Special Rules for Certain 
Trials.” 


SECTION I 

TRIALS IN GENERAL 

The first question to be answered in every trial is, 
whether the court or judge is competent. Every trial 
implies at least three persons: judge, plaintiff, and de¬ 
fendant. Besides these, there are others who are required 
for orderly procedure: attorneys, counsel, witnesses, etc. 
Furthermore, every judiciary procedure is carried on, 
like a debate, by a set of rules which must be carefully 
observed. Then follows the sentence and its execution, 
unless appeal is taken. This is the skeleton of ecclesias¬ 
tical trials. 

I. The Forum Competens or Competent Court 

The person who determines the forum competetens is 
the defendant, according to the well-known adage: 
“Actor sequitur reumf’ i. e., the plaintiff follows the de¬ 
fendant’s court. However, this is a rule which has ex¬ 
ceptions. If the plaintiff has several courts where he may 
be tried, the defendant is allowed to choose between them. 


THE JUDGE 


227 


The several courts may be determined: (a) by domicile 
or quasi-domicile; (b) by a res sita; (c) by a contract; 
(d) by a crime; (e) by connections. 

This, however, does not take away the right to bring a 
case, whether civil or criminal, before the Holy See, no 
matter what stage or turn the suit may have taken. 
From all the faithful in the whole universe appeal or 
recourse is permitted to “the First See which is judged 
by no one ” and which tries cases through its regular 
tribunals, the A. Romana Rota and the Signatura Apo- 
stolica or by specially delegated judges. 

II. The Judge 

1. Excepting those cases which the Apostolic See has 
reserved to itself (can. 1557) or which have been brought 
before it, all cases must be tried by the local Ordinary, 
who may exercise his power personally or by proxy, but 
must invariably proceed according to the rules laid down 
in the following canons. This is the law, new as well 
as old, for every diocese. Exempt religious, of course, 
are bound to this tribunal only in cases expressed by law 
(can. 616) ; otherwise their competent judge is their 
respective superior (can. 1579). 

2. Every bishop is obliged to appoint an ofhcialis with 
ordinary judiciary power. This office is distinct from 
that of the vicar-general. Only in case the diocese is 
small and there is not much litigation, may the bishop 
entrust the vicar-general with this office. 

The tribunal of the ofhcialis and the bishop are one. 
Consequently no appeal can be taken from the one to the 
other, or vice versa. Besides, the ofhcialis cannot render 
judgment in cases which the bishop has reserved to him¬ 
self. The ofhcialis as well as his assistants must be 


228 


ECCLESIASTICAL TRIALS 


priests experienced in law, if possible doctors of Canon 
Law. 

3. The Code also requires that there be in each and 
every diocese either synodal or extra-synodal judges; and 
from among these counselors should be chosen. 

4. The Code commands, under a reprobating clause, 
that a collegiate board of judges be constituted. To a 
board of three judges are reserved the following cases: 
(a) civil or contentious causes concerning the bond of 
sacred ordination ( vinculum s. ordinationis; see can. 
I 993), the marriage tie (not mere separation), and the 
right and property of the cathedral church; (b) criminal 
cases which concern privation of an irremovable bene¬ 
fice, which must also be applied to the case of privation 
(not mere removal) of an irremovable pastor; or 
which concern infliction or declaration of excommunica¬ 
tion, which may also afifect laymen. 

To a board of five judges are reserved all criminal 
cases which involve the penalty of deposition, of perpetual 
privation of the ecclesiastical habit, or of degradation. 

The Code also commands the Ordinary to choose two 
or four judges for a collegiate tribunal, together with 
the president, who is no one else than the diocesan 
officialis, in turn, from among the synodal judges, as, for 
instance, is done by the Roman Rota, where three pro¬ 
ceed per turnum. The turnus may be taken either by 
seniority, or one senior and one junior, etc. But the 
Ordinary may depart from this rule if he deems it advis¬ 
able, and select ecclesiastics who are not synodal judges. 

The ordinary judge in the second instance is the met¬ 
ropolitan court, which must be established in the same 
fashion as the court of the first instance; hence the col¬ 
legiate board with the ofhcialis and vice-ofhcialis must be 
constituted also in courts of appeal, and the same rules, 


ASSESSORS 


22 9 


proportionately, must be observed in the proceedings. 
If the case was tried collegialiter by the first court, it 
must be tried .collegialiter also by the court of appeal; 
if three judges functioned in the lower court, three must 
act also in the court of appeal; if five in the first, five 
also in the second instance. 

III. Assessors or Assistants 

The term here chosen is perfectly legitimate, because 
it comprises the whole personnel collaborating with the 
judge. 

1. Among these the first place is given to the auditor, 
also called instructor actorum, because he drafts the 
summary of the acts, the restrictus. Of these there may 
—it is not absolutely required—be one or more taken from 
the synodal judges. Their office, besides the drafting of 
the acts, includes the summoning and hearing of witnesses 
and the preparation of the judiciary documents according 
to the tenor or wording of their commission or mandate. 

2. The Ordinary may also appoint a referee or ponens, 
taken from the board of judges. This official must re¬ 
port to the judges on the process of the trial and write 
down the sentence, which is generally given in the form 
of an answer to a query, e.g.: “Utrum constet de nulli- 
tate matrimonii? Resp. Affirmative” (or “■negative” as 
the case may be). 

3. At every process or trial there must be present a 
notary, who at the same time acts as secretary. No 
papers or acts are valid unless written, or at least signed, 
by him. This latter clause permits the use of a type¬ 
writer. A rubber stamp is not admissible for the signa¬ 
ture. 

The notary must take down in writing the deposition 


230 


ECCLESIASTICAL TRIALS 


of the witnesses who are present, as well as the answers 
sent in from other courts, which were asked for by the 
litterae rogatoriae. 

4. Each diocese must have a prosecuting attorney and 
defender, a promotor iustitiae, and a defensor vinculi. 
If these officials are summoned to trials which re¬ 
quire their presence, all the acts are null and void, unless 
the officials were actually present, even though not sum¬ 
moned. Hence actual presence is required, not a sum¬ 
mons. 

One and the same person may be promoter and de¬ 
fender, unless a multiplicity of affairs and cases prevents, 
as may happen in large dioceses, or when cases are tried 
by several courts or in different places at the same time. 

5. Then there may be appointed laymen as couriers 
and beadles. How the judge and his assessors are to 
proceed, in what order the different main and incidental 
questions are to be treated, concerning terms and fatalia, 
the days for trials and exclusion of the public, title III 
must be consulted. 


IV. The Parties 

1. Any one not prevented by canon law may be plain¬ 
tiff. The defendant, when duly summoned, must ap¬ 
pear in court. But both plaintiff and defendant may 
present their case by proxy or through advocates (law¬ 
yers), unless the law—which here means first and above 
all the common law, then also a particular law which 
does not contradict the common law—or the judge de¬ 
mand their personal presence. 

For minors and adults who lack the use of reason, 
parents or guardians are obliged to act as plaintiffs or 
defendants, In spiritual matters and matters closely 


THE PARTIES 


231 


connected with these, minors who have attained the use 
of reason may act as plaintiffs or defendants without 
the consent of their parents or guardians; and after com¬ 
pleting the age of fourteen, they may act by themselves 
without a procurator. But before they have completed 
the fourteenth year of age, minors, or rather impuberes, 
must be represented at trials by a guardian appointed by 
the Ordinary, or by a procurator whom they have chosen 
with the Ordinary’s approval. 

Beneficiaries (which name certainly comprises our 
pastors) may act as plaintiffs or defendants in the pros¬ 
ecution of beneficiary rights, but for so doing they need 
the written consent of the local Ordinary, or, in urgent 
cases, that of the rural dean. 

Those who are under a sentence, either declaratory or 
condemnatory, of excommunication, either as vitandi or 
tolerati, are allowed to appear as plaintiffs in ecclesiastical 
trials only in case they wish to plead against the justice 
or legitimacy (validity) of the sentence of excommunica¬ 
tion, and in this case they may defend themselves. 
But if they wish to ward off spiritual injury or dam¬ 
age, they should act by proxy. When they are called 
into court in some other case, they must, of course, 
obey. 

All persons, even the excommunicated, may be ad¬ 
mitted as plaintiffs. 

2. Since the parties may, unless forbidden, present their 
case by proxy and attorneys, these must follow the rules 
of the Code. Each party may choose but one, whilst the 
number of counsels and lawyers is not limited. But at¬ 
torneys and counsels must be Catholics; they must have 
completed the legal age of twenty-one years, and be men 
of good moral standing. Non-Catholics are admitted 
only by way of exception and in cases of necessity. A 


232 


ECCLESIASTICAL TRIALS 


mandate is required for proctor and counsel, without 
which the judge is not allowed to admit them. They may 
also be rejected by the judge, who must, however, issue a 
decree to that effect. 


V. Procedure 

A whole title (V) is devoted to what might be called 
a preliminary quash of a trial, viz., to actions and excep¬ 
tions. Actio signifies the cause or legal demand of a 
right. And every right may be supported and sustained, 
not only by an action, but also by an exception, unless 
the law expressly forbids the latter. 

There are two actions: the one by which the plaintiff 
seeks to vindicate a thing in court or a right founded, 
as he believes, on the authority of the law. This action is 
called petitory ( actio petitoria) ; the other, by which the 
plaintiff claims possession or quasi-possession of a thing 
(actio posscssoria) . For in every complete title to an 
object or right, either movable or immovable, two things 
are necessary: the possession or seisin, and the right or 
property, which in terms of old English law was called 
iuris et seisinae coniunctio. 

Exception, in the sense of an action, is a counterplea, 
or countercharge, by which the defendant endeavors to 
stop, or at least to curtail, the plea or demand of the 
plaintiff. 

However, exceptions are more commonly used in con¬ 
nection with the judge or witnesses, when these are, 
for one reason or another, objected to as suspect or in¬ 
competent. This may suffice for this preliminary ques¬ 
tion. After that the Code, in titles VI to XII, lays down 
the mode of procedure. 

A trial may be considered to have three stages: the 


PROCEDURE 


233 

opening, the defence or pleading, and the sentence with 
its execution. 


A. Opening of the Case 

The first stage, or opening of the case, comprises two 
distinct acts: the statement of the case ( lihelli ohlatio) 
and the summons ( citatio). 

1. A hill of plea, or original writ, is a statement of the 
case made to the competent judge in order to ask him 
to prosecute or to grant redress. It may be made orally; 
but it must contain: (a) the name of the judge; (b) the 
object of the plea; (c) the name of the defendant; and 
(d) the law or reason for the plea. 

2. Then follows the summons, issued by the lawful 
judge to the other party, either plaintiff or defendant. 
This is the beginning of the judicial action. It may be 
omitted if both parties appear before the judge of their 
own accord; but in that case the clerk must record the 
fact that the parties appeared spontaneously at the trial, 
so as preclude a plea of dilatory exception. 

The summons must be made in writing and contain 
what was said above concerning the bill of plea. A copy 
of the summons and a warrant that the summons reached 
the defendant, should be kept on file. This summons is 
absolutely necessary. 

3. The litis contestatio, or issue in pleading, follows on 
the part of the defendant. It is nothing else but a final 
denial or contradiction of the plantiff’s demand, coupled 
with the intention of prosecuting the case before the 
judge. It may be put in by proxy, but should be def¬ 
inite, because, if the petition, or writ, or plaint of the 
plaintiff is obscure and complicated, or the denial of the 
defendant offers serious difficulties, either because the 


234 


ECCLESIASTICAL TRIALS 


facts are doubtful or the law is indefinite, the judge shall, 
either ex officio or at the demand of either party, com¬ 
mand both parties to define the points at issue more 
clearly ( ad concordanda dubia). 

After the litis contestatio (a) it is not allowed to 
change the original writ ( libellus ), unless the judge, for 
weighty reasons, deems a change necessary and the de¬ 
fendant consents, provided always that the latter be in¬ 
demnified, if necessary; (b) the judge shall set a certain 
term for proposing and completing the process or proofs; 
this term may be prorogued at the demand of the parties, 
but not unduly; (c) the possessor of property belonging 
to another ceases to be bona fide after the litis contestatio, 
and therefore, if he should lose his case, is bound to make 
restitution not only of the property or thing itself, but 
also of the interest or profit drawn from the moment of 
the litis contestatio, and shall also be held to indemnifi¬ 
cation, if an additional loss occurs either to the defendant 
or to the object. 

4. Questioning of the parties follows next. When the 
public welfare is at stake, the judge must question the 
parties concerning the facts, in order that they may be 
ascertained. In other cases,— i. e., contentious, civil, or 
private matters,—the judge may question one party at 
the demand of the other, or both ex officio, whenever he 
considers it necessary to corroborate or illustrate a proof 
alleged. Such questioning is admissible until the proceed¬ 
ings are closed. 

The oath to tell the truth must not be demanded 
in criminal trials, lest the defendant be exposed to the 
danger of perjury. However, in civil cases which con¬ 
cern the public welfare, such as matrimonial and ordina¬ 
tion cases, the judge must demand this oath of the parties. 
Culpable or negligent omission of this requirement does 


PROOFS 


235 


not, however, affect the validity of the acts. In other 
cases the judge may demand this oath whenever he deems 
it necessary. 

5. Here the Code inserts the important title on proofs, 
or judicial demonstration of the truth of a disputed as¬ 
sertion or fact. 


PROOFS 

a) No proof is required for notorious facts, nor for 
facts presumed by law, nor in case of judicial confession. 

b) The duty of proving rests with the plaintiff, unless 
the defendant sets up an exception or makes a counter¬ 
charge, and thereby becomes a plaintiff ( reus excipiendo 
fit actor), in which case he must furnish proof to his ex¬ 
ception or counter-charge. 

c) With regard to the weight of proof, the Code speaks 
of plena and semiplena probatio, or plenam and semiple- 
nam fidem facere. Full proof is one which convinces the 
judge and prompts him to give sentence without further 
investigation. A probatio semiplena or half-proof is one 
that leaves room for reasonable doubt. 

d) Different means of proving are: confession, wit¬ 
nesses, experts, local inspection, documents, circumstan¬ 
tial evidence, oaths, and, to some extent, contumacy. 

(1) Confession frees the other party from the burden 
of proof, and may not be retracted except under certain 
conditions (can. 1750-1753). 

(2) A witness is a person who has seen or knows a 
fact about another person, and is therefore competent to 
give evidence concerning the same. Persons whose 
knowledge is privileged cannot be called to take the wit¬ 
ness stand. This includes pastors and priests who have 
knowledge of the matter in question only by reason of, 


236 


ECCLESIASTICAL TRIALS 


and in connection with, their sacred ministry, even though 
such knowledge was gained extra-sacramentally; also 
civil magistrates, physicians, midwives, lawyers (attor¬ 
neys), notaries, and other persons bound by official 
secrecy. 

Unfit and suspected persons must be rejected. Wit¬ 
nesses are introduced by the parties or promoters, and 
must give oath that they will tell the truth and nothing 
but the truth. 

The examination of witnesses is made by the judge or 
auditor in the presence of a notary. Each witness must 
be questioned separately, and their deposition be taken 
down by the notary. The testimony of two or three 
persons is considered full or sufficient proof: (a) if they 
have been duly sworn; (b) if they are beyond suspicion 
and exception; (c) if their testimony is consistent, and 
(d) if they make judicial (not extrajudicial) deposition 
concerning a thing or fact which they themselves have 
witnessed ( de scientia propria). 

(3) Omitting experts and local inspection, some re¬ 
marks concerning documents may be to the purpose. 
There are two kinds of documents: public and private. 
A public document is one composed by an official in his 
official capacity, with due observance of the prescribed 
formalities, or at least in official style. The official style 
requires the signature of an officially acknowledged per¬ 
son, his seal, or at least that of his office (for instance, the 
diocesan or episcopal seal, the parish seal, the monastery 
seal, etc.), and the date and place of issuance. 

A private document is a writing executed by private 
persons or by an official in his private capacity only. 
Thus a pastor or notary public may give a receipt 
(apocha ), or make a bilateral contract (syngraphum) , or 
write a letter, which are entirely private, 


DOCUMENTS 


237 


Public documents are: (a) The acts of the Sovereign 
Pontiff, of the Roman Court, and of Ordinaries, when 
issued in authentic form in the exercise of their office; 
(b) Documents issued by ecclesiastical notaries; (c) 
Judicial ecclesiastical acts, because they possess all the 
requisites of authentic documents; (d) The original rec¬ 
ords of baptism, confirmation, ordination, religious pro¬ 
fession, matrimony, and death, which are kept on file 
in the ecclesiastical courts, in the archives of parishes 
and religious institutes; also the testimonies or certifi¬ 
cates taken from these original registers and issued by 
pastors, Ordinaries, or ecclesiastical notaries, as well as 
copies of these attestations. 

Civil public documents, such as affidavits, are presumed 
to be genuine as long as the contrary is not evidently 
established. They prove what is directly and principally 
affirmed in them. In other words, such documents af¬ 
ford prima facie evidence. They are admitted also by 
the ecclesiastical law. The phrase, “quae directe et 
principals er in eisdem affirmant ur,” must be understood 
of the intention of the plaintiff or the direct object of the 
action to be proved by a document. For instance, a 
baptismal record proves that baptism has been conferred, 
but it does not prove the validity of the baptism, and a 
marriage certificate issued by a recorder proves that the 
parties have gone through the ceremony required by civil 
law, but it does not prove the validity of the marriage 
from the ecclesiastical point of view. 

(4) Praesumptio or circumstantial evidence is a prob¬ 
able conjecture concerning an uncertain fact or thing. 
From circumstances which either necessarily or usually 
attend a fact, we conclude to the existence of the fact 
itself. 

A presumption is legal if expressed in, and admitted 


238 


ECCLESIASTICAL TRIALS 


by, law, and is twofold: iuris simply, when introduced 
and admitted and expressed as such by law; iuris et de 
lure, when it is not only expressed and acknowledged by 
law, but the law is based upon the presumption. Against 
a praesumptio iuris simpliciter, direct as well as indirect 
proofs are admissible; whilst against a praesumptio iuris 
et de iure direct evidence only may be admitted, i. e., a 
proof overthrowing the fact upon which the presump¬ 
tion is based. 

(5) The supplementary oath supplies a missing proof 
and therefore takes the place of a witness or other in¬ 
strument of evidence. It may be admitted in certain 
cases, but should never be demanded in criminal cases. 

(6) Contumacy is treated under the incidental ques¬ 
tions. Its effect for the plaintiff is that he forfeits the 
right of prosecuting the case, because he is supposed to 
have renounced that right. However, if the case con¬ 
cerns the public welfare, as, for instance, in criminal, or- 
dinational, and matrimonial matters, either the promotor 
iustitiae or the defensor vinculi may continue the pro¬ 
secution in his own name. 

B. Defence or Pleading 

This is opened by the publication of the process and 
the closing of the evidence. For before the defence is 
put up and the sentence is pronounced, all the evidence 
contained in the acts or records (minutes) and that which 
has so far been kept secret, must be published. This is 
done in order to give an opportunity to the parties to 
defend themselves. The so-called conclusio in causa is 
nothing but a formal declaration that the evidence 
is exhausted. It requires a decree of the judge. The 
conclusio in causa, as a rule, forbids the bringing forth 


DEFENCE 


239 


of new evidence; otherwise there might be no end to 
the trial and the door would be opened to undue pro¬ 
traction. 

Then follows the defence proper, concerning which the 
Code lays down the following rules: 

i.° A time is to be fixed by the judge for the defence, 
and it may be prolonged or restricted. 

2. 0 The defence is to be made in writing, and if so 
demanded by the judge,—who also gives the permis¬ 
sion,—it must be printed. Each judge as well as the 
fiscal promoter and the defender are entitled to a copy, 
and the parties must exchange their defence. 

3. 0 The judge or the president of the board of judges 
shall direct the defence so that it may not be unduly pro¬ 
tracted. 

4. 0 After the parties have exchanged their written de¬ 
fence, they shall prepare the answers within the time as¬ 
signed by the judge. But answers are allowed only once, 
unless for weighty reasons the judge grants a second 
chance for pleading. However, both parties must be 
treated equally, i. e., if one party is allowed a second 
pleading, the other must also be offered the same op¬ 
portunity. 

The answers are to be in writing and, according to the 
practice of the S. R. Rota, should be ready twenty days 
after the written or printed defence has been distributed 
and exchanged. 

5. 0 Whilst oral information (by which attorneys try 
to explain circumstances of law and fact to the judge, who 
may thus be unduly influenced by a one-sided presentation 
of the case) is forbidden, a moderate oral discussion or 
pleading is permitted, if necessary to throw light on the 
subject. 


240 


ECCLESIASTICAL TRIALS 


C. The Sentence and Its Execution 

1. A sentence is the legitimate pronouncement of a 
judge, by which a case proposed by the litigants and 
judicially tried, is settled. It is called interlocutory if 
it settles an incidental question, definitive if it settles the 
main issue. The judge must have moral certitude con¬ 
cerning the case he settles by his sentence. Moral certi¬ 
tude requires sufficient proof to convince the judge of 
the righteousness of the cause. 

The proofs may not be sought outside of the acts and 
allegations of the trial (acta et probata), because it is not 
as a private citizen, but as a judge, that he must give 
sentence. Hence privately gained knowledge should not 
influence the decision. 

2. When a board of judges or one judge pronounces 
sentence, this must be drafted in such a way: 

i.° That it settles the controversy at issue; that is, 
it must be either absolutory or condemnatory concern¬ 
ing the question contained in the writ of complaint 
( libellus ), and offer suitable answers to each disputed 
point. 

2. 0 That, so far as the case permits, the penalty of 
the guilty party is determined. Hence the sentence 
should state clearly and precisely what the condemned 
party has to give, do, or perform, or from what he has 
to abstain; also the manner, place, and time for fulfill¬ 
ing the obligation imposed. This is called sententia 
certa. 

A conditional sentence, as a rule, is invalid, because a 
trial is supposed to settle the quarrel. 

3. 0 That it contains the reasons, in facto et hire, upon 
which the dispositive part of the sentence is based. The 


THE SENTENCE 


241 


dispositive part is that which contains the absolutory or 
condemnatory sentence. Hence neither the arenga, 
nor the narratio propria, nor the conclusio are here con¬ 
cerned. 

4. 0 That it states the amount of expenses incurred. 

The extensor, who is no one else but the ponens or ref¬ 

eree, i. e., one of the judges, may make a summary 
(ristretto ) of the motives or reasons given by the judges, 
unless the majority has specifically determined which 

motives are to be advanced. 

3. The sentence thus drafted should be published as 
soon as possible. How soon, is not expressly stated; but 
the phrase generally means after an interval of not more 
than three or eight days. 

The manner in which the sentence may be published 
is threefold: 

1. By summoning the parties to hear the sentence 

solemnly pronounced by the judge sitting in court; 

2. By notifying the parties that the sentence is ready 
at the chancery of the court, and leave is granted to read 
it and have a copy made; 

3. By sending a copy of the sentence to the parties 
concerned through the public carrier, where this is cus¬ 
tomary. 

4. From a sentence thus published, an appeal, except 
in certain cases (see can. 1880), may be brought before 
the judge who pronounced the sentence, within ten days 
from the time the sentence becomes known. If the judge 
is still sitting in court, and the sentence was publicly 
read, the appeal may be made there and then; but the 
clerk must put it down in writing. Otherwise the party 
may, within ten days, put in the appeal in writing and 
offer it to the judge, or employ a notary public (of the 
ecclesiastical court) to draw it up for him. The appeal 


242 


ECCLESIASTICAL TRIALS 


must be prosecuted before the judge to whom it was 
directed, within a month from the date when it was 
lodged. 

But the judge from whom the appeal was made may 
fix a longer term for the prosecution of the case ap¬ 
pealed. The judge to whom ( ad quern) is not deter¬ 
mined here, but the rule is that he should be the one 
immediately superior. Hence from the diocesan court 
appeal should be taken to the metropolitan court. How¬ 
ever, this latter may lawfully be omitted if an appeal is 
addressed to Rome. From the vicar-general *to the 
bishop no appeal is possible. 

If the parties permit the term granted for appeal (i. e., 
ten days for putting in the appeal before the judge a quo, 
and a month or thirty days for prosecuting the appeal 
before the appellate court) to expire, the appeal is sup¬ 
posed to have been dropped. These terms are called 
fatalia, because they prove fatal to a cause if not ob¬ 
served. 

After an appeal has been properly lodged, the court 
from which ( a quo) the appeal was made must forward 
to the court of appeal ( ad quern) either the original acts 
of the trial or a copy thereof. 

In the second instance no new complaint or new doubts 
concerning the merit of the cause may be admitted, even 
if the new complaint is brought by way of a valid 
bulking of several actions ( utilis cumulations). 

Different from appeal is the complaint of nullity of a 
sentence, of which there are two kinds that may upset a 
sentence or at least retard its execution: one is a cur¬ 
able and the other an incurable defect. 

The sentence is incurably null in the following cases: 

i. When it has been rendered by an incompetent judge, 


THE SENTENCE 


243 

or, if there was a board of judges, by a number less than 
that prescribed by law; 

2. When the sentence has been pronounced on parties 
one of whom was not entitled to bring suit in an ec¬ 
clesiastical court; 

3. When one has prosecuted a case in another’s name 
without being commissioned to do so {sine legitimo man¬ 
dat o) ; hence a proctor, counsel, or administrator (cfr. 
can. 1520) cannot validly prosecute without a special 
commission. 

A sentence has a curable defect: 

1. If the legitimate summons was omitted; 

2. If it does not contain the reasons or motives that 
prompted the judge; exempt from this rule are sentences 
given by the Signatura Apostolica; 

3. If the necessary signatures are wanting; 

4. If the date and place are wanting; as to date, the 
year, month, and day are required. 

5. As soon as a sentence becomes res iudicata, it may be 
executed. And a res becomes iudicata: (1) After two 
uniform sentences have been pronounced on the same 
case, i. e., in the first and second instance, or in the sec¬ 
ond and third instance. (2) After a sentence which has 
not been appealed within the time granted by law. The 
same holds good when a sentence, though appealed to the 
judge who pronounced it, was not prosecuted at the court 
of appeals. (3) After one sentence in cases in which 
no appeal is admitted. 

The execution should be carried out, either personally 
or through a delegate, by the local Ordinary of the di¬ 
ocese in which the trial was prosecuted in the first in¬ 
stance. If he refuses or neglects to put the sentence 
into effect, the interested party may demand execution 


244 


ECCLESIASTICAL TRIALS 


from the court of appeal, which may execute the sentence 
ex officio in case of refusal or neglect of the lower court. 

SECTION II 

SPECIAL RULES FOR CERTAIN TRIALS 

Leaving aside compromise, there are three trials which 
demand closer attention, viz.: criminal, matrimonial, and 
ordination cases. 


I. Criminal Cases 

1. The subject of criminal trials are public crimes as 
understood by the Code. 

Exempted from criminal procedure are the cases for 
which other penalties are sanctioned in law. These are: 

a) Procedure against non-resident clergymen; can. 
2168-2175. 

b) Procedure against concubinarii clerici; can. 2176- 
2181. 

c) Procedure against pastors who neglect their pas¬ 
toral duties; can. 2182-2185. 

d) The procedure called ex informat a conscientia; 
can. 2186-2194. 

2. Accusation or criminal action may be brought by 
no one but the promotor iustitiae. 

From this differs denunciation, which, in certain cases, 
is demanded by law, and, therefore, is incumbent on every 
Catholic. Besides, every Catholic has the right to de¬ 
nounce the crime of another, either (a) to demand satis¬ 
faction or indemnity, or (b) for the sake of justice, i.e., 
that scandal may be repaired or evil counteracted. 

Denunciation should be made in writing and signed 
by the accuser, or orally to the local Ordinary, the di- 


CRIMINAL CASES 


245 


ocesan chancellor, or the rural dean or pastor (assistants 
or curates are not mentioned, and therefore cannot law¬ 
fully accept a denunciation). 

Since the denouncer forms, as it were, one person 
with the fiscal promoter, the latter is entitled to demand 
all the evidence and the assistance of the accuser, in order 
to prove the crime. 

3. A special inquest is required in cases (a) where 
the crime is neither notorious nor entirely certain, viz., 
uncertain as to the fact or its imputability to the person 
denounced, but known only (b) through rumor and hear¬ 
say, or (c) by semi-official information, viz., denunci¬ 
ation, complaint of damage, general inquiry made by the 
Ordinary, or in any other strictly extra-judicial way. 
But the inquest should not begin before sufficient evi¬ 
dence has been gathered, so that the Ordinary can give 
orders for the inquest. The inquisitor cannot validly act 
as judge. Denunciations made by manifest enemies or 
persons of ill-fame, and such as are anonymous, must be 
counted for nothing. The inquest must be held secretly. 

If the result of the inquest proves groundless, the Or¬ 
dinary, or the officialis, by special mandate, issues a de¬ 
cree to that effect; if insufficient, the acts are simply put 
away in the secret archives; if conclusive or probable, the 
delinquent must be summoned. 

4. If the delinquent makes a judicial confession, he 
may, except in very serious cases (can. 1948), be tivice 
corrected or rebuked. When correction is applied, the 
trial is suspended, provided the correction proves effective, 
i. e., the corrected person behaves himself. This correc¬ 
tion or rebuke consists in wholesome admonitions, com¬ 
bined with appropriate remedies, such as penances and 
good works, applied to the delinquent in order that he 
may publicly repair the disturbed order of justice and 


246 


ECCLESIASTICAL TRIALS 


the scandal given. However, these remedies do not bear 
the character of a judicial punishment, because the crim¬ 
inal trial has not yet begun, and hence they should be 
milder than those meted out after a condemnatory sen¬ 
tence. 

5. Criminal procedure must begin: 

a) if judicial correction was considered insufficient 
to repair the scandal or to restore justice (can. 1948) ; 

b) if the defendant denies the crimes imputed to him, 
in which case the judicial correction may not be em¬ 
ployed ; 

c) if judicial correction was ineffective. 

The fiscal promoter must immediately draw up a bill 
of complaint or accusation, and present it to the judge, 
according to the rules laid down in the first section of 
this Book (IV). The defendant must be summoned as 
in other trials. If the crime is of a very serious nature, 
and the Ordinary is of the opinion that the faithful would 
be scandalized if the incriminated cleric should exercise 
the sacred ministry or perform spiritual functions or 
pious exercises or publicly receive holy Communion, he 
may, after having heard the promoter’s advice, forbid 
him to exercise the sacred ministry or spiritual ecclesi¬ 
astical functions, and to receive Communion publicly. 
This is a kind of suspension, but without penal character, 
and therefore irregularity would not follow its violation. 

II. Matrimonial Cases 

I. Matrimonial cases between baptized persons belong 
by proper and exclusive right to the ecclesiastical judge. 
Exclusively competent is the S. C. of the Sacraments 
whenever there is question of dispensing from a ratified 
but not yet consummated marriage. 


MATRIMONIAL CASES 


247 


Cases of the Pauline Privilege belong to the Holy 
Office. The local Ordinary is competent in case of im- 
potency, as explained in can. 1963, § 2, in the following 
terms: If he has, by his own authority, conducted a 
trial for nullity of marriage on account of impotency, 
the result of which trial amounted, indeed, not to the 
establishing of impotency, but at least to proving that 
the marriage had not been consummated, he must send 
all the acts to the S. C. of the Sacraments, which will use 
these documents in order to pass judgment on the matri- 
monium ratmn, non consummatum. It is hardly neces¬ 
sary to add that this preliminary investigation as to im¬ 
potency, or non-consummation of marriage, respectively, 
must be conducted by experts, viz., conscientious mid¬ 
wives and physicians, whose procedure and depositions 
must be judged according to the rules laid down in can. 
1976-1982. 

In other matrimonial cases the competent judge is the 
judge of the respective place (or diocese) where the mar¬ 
riage was celebrated, or where the defendant has his dom¬ 
icile or quasi-domicile, or, if one of the parties is a 
non-Catholic, where the Catholic party has his or her 
domicile or quasi-domicile. 

2. The court is composed of the collegiate board of 
three judges and the defensor vinculi. How the judges 
proceed, see in can. 205-207 and 1576. 

The duties of the defender are: 

a) He must be present at the examination of the 
parties, witnesses, and experts; must present to the 
judges, in a closed and sealed envelope, the questions to 
be opened by them in the act of examination, and to be 
proposed to the parties and witnesses; and suggest to 
the judges new questions which may arise from the 
cross-examination. 


248 


ECCLESIASTICAL TRIALS 


b) He has to weigh the arguments proposed by the 
parties, and if necessary to contradict them, and to re¬ 
view the papers offered. 

c) He has to set down in writing and to point out 
observations against the nullity of the marriage and in 
favor of its validity or consummation, and, in general, 
to make use of all lawful means which he deems con¬ 
ducive for the defence of the marriage bond. 

But it is not his office to collect evidence, make up 
petitions, and sift illegible scraps of paper sent by pastors 
at random. The ordinary channel through which he is 
to work out the cases is the diocesan chancery. How¬ 
ever, the diocesan chancery is supposed to be represented 
by a man versed in Canon Law, to some extent at least. 
Besides—we speak from experience—it would be a rea¬ 
sonable demand if the local Ordinary would insist upon 
“decent” paper of a definite size and that all documents 
be typewritten, or at least legibly written, signed and 
sealed by the pastor. 

The rights of the defender are: 

a) He is entitled to inspect, at any stage of the pro¬ 
ceedings, the minutes of the trial, even though they have 
not yet been published, and to demand prorogation, which 
is to be granted according to the discretion of the judge, 
in order to complete his records. 

b) He is entitled to be informed af all the proofs and 
allegations made, in order to be able to contradict them 
if he wishes. 

c) He may demand that new witnesses be introduced 
or that such as have already been on the witness stand, 
be re-examined, even though the minutes of the trial have 
been completed and published; and he may also make new 
observations. 

d) Finally, he may demand that other acts, suggested 


MATRIMONIAL CASES 


249 

by himself, be drawn up, unless the tribunal objects to 
this demand by a unanimous vote. 

A remark concerning documents. Public documents 
afford full proof. But affidavits with the clause, “to the 
best of my knowledge,” cannot be accepted as full proof, 
since they betray a wavering state of mind. Concerning 
baptism, there should be at least two witnesses, if no 
public document can be obtained, whilst one official public 
document must be considered sufficient. What some¬ 
times is feared from perjury—even in affidavits—should 
not be presumed, but needs proof, and therefore such 
papers or witnesses must be admitted, until contrary 
proof is established beyond a doubt. The defender is not 
obliged to raise doubts as to perjury. 

3. The parties alone are admitted to attack their mar¬ 
riage on the ground of defective consent, whether this 
defect be caused by violence and fear, or error, or lack 
of will, or unlawful conditions. They alone have the 
right to petition for a dispensation from a marriage 
ratified but not consummated. 

Besides the parties themselves, the promotor iustitiae 
or prosecuting attorney of the diocesan court may attack 
a marriage because of impediments which are by nature 
public. Can. 1037 defines an impediment to be public 
when it can be proved in court. With the exception per¬ 
haps of impotency and crime, all marriage impediments 
are more or less of a public character. 

All others, even blood relations, have no right to at¬ 
tack a marriage, though they may denounce a marriage 
which they regard as null to the Ordinary or promoter of 
justice. 

4. For legal procedure the general rules must be ob¬ 
served. Thus witnesses, experts, and bodily inspection 
may be required. The defender is entitled to be heard 


250 


ECCLESIASTICAL TRIALS 


last, when allegations are made, petitions filed, or answers 
given, and he may exercise this right either in writing 
or by word of mouth. He must, within the time granted 
by law, appeal to a higher tribunal if the first sentence 
was in favor of the nullity of the marriage. If the sec¬ 
ond sentence confirms the first, and the defender of 
the court of appeals (who is a different one from that 
of the first instance) does not feel himself obliged in 
conscience to appeal, the parties are free to marry again 
after the expiration of ten days from the date when the 
second sentence became known to them. 

Since no sentence in matrimonial trials ever becomes 
a res iudicata, a case may be reopened at any time, pro¬ 
vided new proofs are offered; but these proofs must 
be of a weighty nature and supported by documents. 

The solemnities thus mentioned may be omitted, and 
the Ordinary, upon having summoned the parties, may 
declare the marriage null and void, provided the defensor 
vinculi is satisfied, in cases of the following impediments: 
disparity of worship, sacred orders, solemn religious pro¬ 
fession, the bond of a previous marriage, consanguinity, 
affinity, and spiritual relationship; but the following con¬ 
ditions must be verified : 

(a) that the existence of the impediment be ascertained 
by a reliable and authentic document, which cannot be 
rejected or disregarded; 

(b) that it be equally certain that no dispensation had 
been granted from the impediment. 

The Papal Commission for the Authentic Interpreta¬ 
tion of the Code has decided the following cases: 1 

I. If two Catholic parties have contracted marriage 
before the civil magistrate only, without observing the 
“Tametsi” or the “Ne temere” in places where these 
laws are binding, and wish to contract marriage anew 


ORDINATION CASES 


251 


in facie Ecclesiae, or to have their civilly contracted mar¬ 
riage revalidated, the local Ordinary (or the pastor after 
having consulted the local Ordinary) may declare the 
first marriage null and void without a formal trial and 
without the intervention of the defensor vinculi, after 
having made the investigation prescribed in can. 1019, 

i. e., after having ascertained the free status of the couple, 
i. e., that no other impediment except the former invalid 
civil marriage is in the way. 

2. The same rule is to be applied in cases of mixed 
marriage contracted invalidly under the same condition, 
provided the Catholic party wishes to contract a new 
marriage with a Catholic party. 

3. The same rule applies in cases where apostates from 
the Catholic faith have contracted an invalid civil mar¬ 
riage for the same reason, and, now repentant, wish to 
contract a new marriage with a Catholic party in facie 
Ecclesiae. 

But in each and every one of these cases a civil divorce 
must have been obtained. (A. Ap. S. } Vol. XI, 479, Oct. 
16,1919). 


III. Ordination Cases 

1. If the obligations arising from sacred ordination, 
or the validity of the ordination itself, are disputed, a 
petition must be filed with the S. C. of the Sacraments. 
If the dispute concerns a substantial defect in the holy 
rites, the Holy Office is competent. If the case is to be 
settled in a judiciary way, the local Ordinary or the Or¬ 
dinary of the diocese where the disputed ordination took 
place, will have to prepare the documents, when asked by 
the Roman Court. 

2. The clergyman himself, as well as the Ordinary to 


252 


ECCLESIASTICAL TRIALS 


whom he is subject, or in whose diocese he was ordained, 
may attack the validity of ordination. However, no one 
but the clergyman who thinks that he has not contracted 
the obligations arising from sacred ordination is entitled 
to ask for exemption from these obligations. 

3. The defender of the ordination tie enjoys the same 
rights as the defensor vinculi matrimonialis. 

4. Two identic sentences are required to free a clergy¬ 
man from the obligations of sacred orders, viz., celibacy 
and the recital of the Breviary. 

Concerning appeals, the general rules on appeals must 
be followed. 


PART II 

BEATIFICATION AND CANONIZATION 

1. Canonization is an act by which the Sovereign Pon¬ 
tiff definitively and, we may add, infallibly declares an 
individual who died in communion with the Church to be 
a Saint and deserving of the veneration of the universal 
body of the faithful. 

2. The persons assisting at the trial are the petitioners, 
the postulators, the Cardinal relator, the promotor and 
the subpromotor fidei, notaries, secretaries, advocates, all 
of whom are bound under oath to fulfill their duties con¬ 
scientiously. 

3. The evidence turns about the theological and car¬ 
dinal virtues, whether they were possessed in a heroic 
degree; or, if a martyr is under discussion, whether the 
fact of martyrdom is established as well as signs and 
miracles. If the result of the finding is favorable, the 
Servant of God may be called Venerable. Then the 


BEATIFICATION AND CANONIZATION 253 

miracles are severely scrutinized, with the assistance of 
physicians. There must be at least two or three miracles 
unquestionably proved to have been wrought at the inter¬ 
cession of the Servant of God. If martyrdom is evident, 
miracles are not strictly required. This concerns cases 
per viam non cidtus. 

4. When the via cultus or casus excepti is to be em¬ 
ployed, the Ordinary, after having collected all the writ¬ 
ings,—this is absolutely required also in the former 
method,—must gather evidence concerning the general 
and constant veneration paid to the Servant of God in 
the place, on his martyrdom and its cause, the miracles 
wrought at his intercession, and whether this veneration 
is now given to him. If, after examination made upon 
the request of the S. Congregation of Rites and approved 
by the Pope, the fact of veneration is verified, the virtues 
and miracles are scrutinized. Then the decree of im- 
memorable cult and heroic degree of virtues is issued; 
which is equivalent to beatification. 

5. Finally, canonization follows. A document estab¬ 
lishing formal or equivalent beatification is required to 
introduce the process of canonization, or else an inquiry 
must be made as to the positive permission of the cult 
on the part of the Roman Pontiff. 

To proceed to the canonization of a formally beatified 
Servant of God, two miracles wrought through his inter¬ 
cession after beatification, and three miracles in case the 
beatification was aequipollens, are required. The dis¬ 
cussion of these miracles takes place as stated under be¬ 
atification (can. 2116-2124). 

Then the Roman Pontiff issues a decree of solemn 
canonization, the ceremonies and solemnities of which 
are those approved by the Roman Court. 


254 


ECCLESIASTICAL TRIALS 


PART III 

MODE OF PROCEDURE IN CERTAIN CASES 

There are seven cases for which the Code determines 
the procedure especially: the first three treat of removal 
and transfer. These, indeed, may also be treated by way 
of criminal trial, because the Code exempts from crim¬ 
inal trial only the last four. 

General Rules 

1. In all these trials a notary should be employed. 

2. Admonitions must be made, like a precept, either 
in writing, or if made orally, before two witnesses. 

3. Examiners and pastors-consultors must be employed. 

4. The procedure is a summary one, without all the 
solemnities of a regular trial. 

5. From the final decree only recourse is admissible. 

A. Removal of Irremovable Pastors 

1. An irremovable pastor may be removed from his 
parish for any reason which renders his ministry harm¬ 
ful, or at least inefficient, even though there be no griev¬ 
ous fault implied on his part. In particular these rea¬ 
sons are: (a) Inexperience or permanent mental or bod¬ 
ily infirmity, which render the pastor incapable of dis¬ 
charging his obligations properly, provided, however, 
that the Ordinary is convinced that the welfare of the 
souls in his charge cannot be insured by the appointment 
of a coadjutor; (b) Popular hatred, even though unjust 
and not general, provided it is such as to prove an ob¬ 
stacle to the pastor’s useful ministry and is not likely to 


REMOVAL OF PASTORS 


255 


cease within a short time; (c) Loss of esteem among 
righteous and serious-minded men; (d) A probable crime 
imputed to the pastor, which, though secret, may in the 
bishop’s judgment create great scandal among the faith¬ 
ful; (e) Faulty administration of the temporalities, to 
the great damage of the church or benefice. 

2. The procedure comprises the following acts: 

a) Hearing the advice of the examiners concern¬ 
ing the charges; 

b) Invitation to resign. If the pastor resigns, the 
case is finished. If he neither resigns nor asks for a 
delay or dilatory terms, nor rebuts the reasons alleged, 
the Ordinary must make two inquiries, one touching the 
juridical formalities, and the other concerning a mere 
fact; to wit, he must inquire whether, and be morally 
certain that: 

a) The invitation to resign has been properly made 
and reached the pastor, and that 

/?) the pastor had no lawful excuse for not answering 
the same. After that removal may be decreed. 

c) If the pastor opposes the reason alleged in the in¬ 
vitation because he is convinced that it has no founda¬ 
tion except gossip, he is entitled to demand dilatory terms 
—the extent of which is not determined by the Code— 
in order to prepare his defence. Then the reasons are 
examined by the Ordinary and the examiners. 

d) The decision of the Ordinary must be communi¬ 
cated to the pastor, who may, within ten days, have 
recourse to the Ordinary against the decision, and within 
another ten days produce the reasons. Here the pas¬ 
tors consultors must be asked for their advice in debating 
the reasons advanced by the pastor. 

e) After that the final decree is issued and notified 
to the pastor. 


256 ECCLESIASTICAL TRIALS 

f) Then follows his transfer to another parish or of¬ 
fice. The pastor, thus removed, must, as soon as pos¬ 
sible, leave the parochial residence and hand all the be¬ 
longings of the parish to the new pastor, or administrator 
pro tempore, appointed by the Ordinary. But the Or¬ 
dinary should leave a sick priest in the (if necessary ex¬ 
clusive) enjoyment of the pastoral residence as long as 
his need requires. 

B. Removal of Movable Pastors 

1. There must be a just and grave reason, viz., one of 
those mentioned above. A certain fixed term must be 
given the pastor for answering the Ordinary’s demand. 
If the warning is given in writing, it should be sent by 
registered mail. 

2. If the pastor does not act upon being thus warned, 
he may be removed at once. If he answers negatively, 
i. e., if he refuses to resign, he must state the reasons 
for his refusal in writing. The Ordinary shall then 
discuss these reasons with two of the examiners. This 
discussion is required for valid procedure. 

3. If the Ordinary, after having heard the advice of 
the examiners—which, however, he is not bound to follow 
—deems the reasons brought against the removal ground¬ 
less or unlawful, he shall repeat the exhortation to re¬ 
sign under threat of involuntary removal in case the 
pastor refuses to leave the parish within the time ap¬ 
pointed. 

4. After the expiration of this term (which may, how¬ 
ever, according to the prudent judgment of the Ordinary, 
be prolonged) the Ordinary shall issue the decree of re¬ 
moval. This, of course, must be intimated to the pas¬ 
tor. 


LAW OF RESIDENCE 


257 


C. Transfer 

1. If the welfare of souls requires a transfer, the Or¬ 
dinary will know that an irremovable pastor cannot be 
transferred against his will, unless the Ordinary has 
special faculties to transfer him. 

2. A removable pastor may be transferred to another 
parish against his will, provided the parish to which he 
is transferred is not of too low a rank, and provided the 
Ordinary proceeds according to law. 

D. Procedure against Clergymen Transgressing the 

Law of Residence 

Pastors as well as assistants (curates) unless lawfully 
excused are obliged to reside within their parish. If 
they violate this law the procedure is as follows: 

1. The Ordinary shall first give a canonical warning 
or admonition and in the mean time, in the case of a 
negligent pastor, provide as well as he can for the wel¬ 
fare of his subjects. The expenses of this temporary 
provision must be borne by the careless pastor. 

2. If he does not heed the warning at all, removal is 
to be declared against him, as follows: 

a) A removable pastor, who does not return after 
the second canonical warning, may (not must ) be de¬ 
prived of his parish immediately after the appointed time 
has elapsed. If he returns within the time set, the Or¬ 
dinary shall issue a precept to the effect that, if he again 
leaves the parish without a written permission, he shall be 
ipso facto deprived of the parish. 

b) If an irremovable pastor does not return to his 
residence after being duly warned, but brings forward 
new excuses for his absence, the Ordinary shall discuss 


258 


ECCLESIASTICAL TRIALS 


them with the examiners to see whether they may be 
admitted as lawful. If not, he shall not demand other 
proofs, but simply command the cleric to return within 
the time previously appointed, or a new term now fixed, 
under penalty of privation of his benefice, to be incurred 
ipso facto. 

If the pastor does not return within the prescribed 
time, the Ordinary shall declare him deprived of his 
benefice; if he returns, the Ordinary shall give him a 
precept like that issued in the case of removable pastors, 
viz., not to leave the place a second time without a 
written permission, under penalty of incurring privation 
of benefice ipso facto. 

E. Procedure against Concubinarians 

1. The fact of concubinage must be established and 
proved. 

2. A personal and special warning is to be adminis¬ 
tered, with threats of penalties. 

3. If the warning or precept was duly made and no 
answer returned, the Ordinary shall proceed as follows: 

a) He shall suspend the cleric a divinis, i. e., from 
exercising the acts of the power of ordination (can. 
2279, § 2, n. 2°) ; 

b) If the cleric is a pastor, he shall be immediately 
deprived of his parish, provided no excuses are forth¬ 
coming. 

4. If excuses are offered, the Ordinary must call in 
two examiners, and discuss with them the validity or 
lawfulness of the reasons alleged. This discussion is 
absolutely required, although the Ordinary is not bound 
to accept the views of the examiners. If the excuses are 
found without weight, the procedure is as above, with 


EXINPORMATA CONSCIENTIA 


259 


this difference, that an irremovable pastor must be given 
a new warning, which is not required for a removable 
pastor. 

F. Procedure against Neglectful Pastors 

1. The neglect here mentioned may concern: 

a) The administration of the Sacraments, pastoral cor¬ 
rection and charity, care of the sick and dying (can. 467, 
§ 1; 468, § 1) ; 

b) Catechetical instructions and personal preaching, 
especially on Sundays and holydays of obligation (can. 

1330-1334, 1344); 

c) Neatness and decorum in the house of God, which 
includes care that no profanation occur (can. 1178). 

2. Gross neglect must be punished first by admonition, 
then by a rebuke and some penalty, and, finally, after a 
new warning and time being given for defence, by sub¬ 
traction of the salary, and, lastly, by removal. 

G. Suspension ex Informata Conscientia 

1. Ordinaries are allowed to suspend their clerical sub¬ 
jects from office, either partly or totally, ex informata 
conscientia. However, they should not inflict suspension 
ex informata conscientia when they can proceed without 
great inconvenience in the judiciary way. For this may 
be styled an extraordinary means of inflicting a heavy pen¬ 
alty, which, as a rule, would require all the solemnities 
of a trial. If the suspension is ab officio, without further 
determination or limitation, it forbids every act of order, 
jurisdiction, and administration implied in the office it¬ 
self, except the administration of the benefice as such. 
If a partial suspension is intended, it must be clearly 


26 o 


ECCLESIASTICAL TRIALS 


indicated. But this suspension, either partial or total, 
affects neither benefice nor reception of higher orders. 

2. It is required that the decree of suspension be 
issued in writing, unless the circumstances advise another 
mode, for instance, when there is a well-founded sus¬ 
picion that the clergyman or others are bent on causing 
trouble in any shape or form. The decree must contain 
the precise date, i. e., day, month, and year of issue. Be¬ 
sides, it must contain the following statements: 

a) That the suspension is inflicted ex informata con- 
scientia, for reasons known to the Ordinary; 

b) That it is inflicted for a certain clearly expressed 
period of time; 

c) A specification of the acts forbidden if the sus¬ 
pension is partial only. 

3. It is furthermore necessary that the Ordinary who 
suspends a cleric ex informata conscientia, have evidence 
sufficient to be certain (a) that the cleric really per¬ 
petrated the crime with which he is charged, and (/?) 
that the crime is of a nature to deserve such a severe 
punishment. 

4. The crime for which this suspension is inflicted, 
must be occult, i. e., one which is not yet divulged or has 
been committed under, or is involved in, circumstances 
which render it unlikely that it will become known. “Oc- 
cultum, quod non est publicum” says can. 2197. 

For public crimes the suspension ex informata con¬ 
scientia can be inflicted only under certain conditions: for 
notorious crimes it cannot be inflicted at all. 

5. Since there is no judiciary procedure involved, it 
is left to the prudent judgment of the Ordinary to mani¬ 
fest or conceal the reason for the suspension. If he 
deems it prudent to make the reason known to the sus¬ 
pended cleric, he should use pastoral care and charity, in 


INFORMATA CONSCIENTIA 261 

order that the penalty inflicted and accompanied by 
paternal admonitions may not only procure an atonement 
of the transgression, but also better the delinquent and 
eliminate further occasions of sin. 

6. Recourse to the Apostolic See, i. e., to the S\ Con - 
gregatio Concilii, is permitted, but no appeal or recourse 
to any higher instance. The recourse has no suspensive 
effect. The Ordinary must forward to the same S. Con¬ 
gregation papers containing the evidence or proofs that 
the clergyman really committed the crime for which he 
was suspended ex informata conscientia. These must 
be sent in trustworthy and correct abstracts, bearing the 
official seal and signature. 


BOOK V 


PENAL CODE 

This book on “crimes and penalties’’ is divided into 
three parts, the first of which treats of crimes or trans¬ 
gressions, the second of penalties in general, and the 
third of penalties in particular. 

PART I 

CRIMES 

(Can. 2195-2213) 


TITLE I 

NATURE AND DIVISION OF CRIMES 

1. A crime , in ecclesiastical law, is an external and 
morally imputable transgression of a law to which is at¬ 
tached a canonical sanction, at least in general. 

2. Three kinds are distinguished: public, notorious, 
and occult crimes. 

a) A public crime is one committed under, or accom¬ 
panied by, circumstances which point to a possible and 
likely divulgation thereof. 

b) A notorious crime may be such either by notoriety 
of law or notoriety of fact. It is notorium iuris if it has 
become an adjudged matter, or is judicially confessed 
(can. 1750). A crime is notorious notorietate facti when 

262 


IMPUTABILITY 


263 


it is publicly known and has been committed under such 
circumstances that it cannot be concealed by any artifice 
or be excused by any legal assumption or circumstantial 
evidence. 

c) Every crime which is not public, says our text, is 
occult or secret. The Code distinguishes a twofold se¬ 
crecy, viz., merely material ( material-iter occultum). 
which exists when the fact is unknown, or known only 
to the perpetrator and a few reticent persons; and formal 
(formaliter occultum), when the moral and juridical guilt 
is unknown. 


TITLE II 

IMPUTABILITY 

1. The imputability of a crime depends on two essen¬ 
tial conditions on the part of the perpetrator, viz., (1) 
deliberation {dolus), and (2) speculative or practical 
guilt {culpa). Since either reason or free will may be 
affected not entirely, but partially, the degree of imputa¬ 
bility or guilt is proportionate to the mental state in which 
the agent was at the time he committed the criminal act. 

Incapable of committing a crime are those who are 
actually deprived or destitute of the use of reason. 
Those habitually insane are presumed not to be capable of 
committing a crime, even though they may have lucid mo¬ 
ments or may appear sane as to certain processes of rea¬ 
soning or certain acts. 

2. Ignorance properly means an absence of knowledge 
that is morally imputable to the free agent. Such ig¬ 
norance may be culpable or inculpable, and our text 
says that inculpable ignorance of the law renders 
one immune from responsibility for transgressing it, 


264 


PENAL CODE 


whereas culpable ignorance diminishes the degree of im- 
putability only in proportion to the obligation one is under 
of acquiring the necessary knowledge. 

Ignorance is vincible if it can be removed by the use 
of ordinary means proportionate to the matter and the 
person who has to employ these means. If it cannot be 
remedied except by extraordinary means, which are re¬ 
quired neither by the thing itself nor by the state or 
vocation of the person who is supposed to be obliged to 
use such means, ignorance is called invincible. 

There are different degrees of vincible ignorance; af¬ 
fected, when one purposely avoids knowing the laws, in 
order to escape the burden of observing them; supine or 
crass, when one is ignorant of the law through indolence 
or carelessness. Both affected and supine ignorance, 
being consequent, render a crime simply voluntary. A 

Ignorance of the penalty does not take away, but to 
some extent diminishes, imputability. This rule must 
be proportionately applied to inadvertence and error. 

3. Concerning carelessness, the text says that a breach 
of law committed by omitting the required diligence is 
less imputable, but the degree of imputability is left to 
be fixed by the judge, who must weigh all the circum¬ 
stances. But if a person has been able to foresee the 
event (or effect of an action) and has nevertheless 
omitted to take the precautions which ordinary diligence 
would have dictated, carelessness approaches vicious in¬ 
tent or dolus. 

4. As to age, it is ruled that, unless the contrary is evi¬ 
dent, youth diminishes responsibility in proportion to its 
closeness to infancy. 

5. Other causes diminishing imputability are: violence, 
fear, necessity, and self-defence. Of the last named the 


CONATUS DELICTI 


265 


Code says that the motive of legitimate self-defence 
against an unjust aggressor, provided the measure of 
necessity is not exceeded, takes away the criminal offence, 
and, like provocation, diminishes imputability. 

With regard to the passions the law states that these, 
when wilfully and deliberately excited and fostered, in¬ 
crease imputability; otherwise, i. e., if neither nurtured 
nor stirred up by wilful cooperation, but simply taken as 
they objectively affect human nature as a whole and in¬ 
dividually, diminish responsibility in proportion to the 
degree of strength with which they work on the imagina¬ 
tion. If they precede and impede the deliberation of the 
mind and the consent of the will, the act following can¬ 
not be imputed. 

6. Aggravating circumstances are: higher dignity, 
abuse of authority and power, and relapse into the same 
crime. 

7. Effects of crime are what may be called its con¬ 
sequences. For from crimes may arise: 

i.° A penal or criminal action looking either to a dec¬ 
laration or condemnation to penalty and satisfaction, or 
to retribution. 

2. 0 A civil action looking to repair of the damage 
if any was done. 


TITLE III 

CONATUS DELICTI 

1. A conatus delicti is an external act committed with 
criminal intent, but without effect, in other words, a 
non-consummated crime. 

2 , A crime is said to be frustrated if all the acts neces- 


266 


PENAL CODE 


sary for its commission, whether positive or negative, 
were posited, and sufficient preparations were made to 
commit the crime, but the same was not actually com¬ 
mitted because another cause or agent aside from the 
perpetrator interfered and prevented it. 

3. The imputability for attempted and frustrated 
crimes is determined as follows: 

a) An attempt to commit a crime is less imputable 
than the act of perpetrating it; the degree of responsibil¬ 
ity for the former must be gauged by its approach to the 
latter, with due regard, of course, to the damage done. 

b) The responsibility resulting from a crime that failed 
involuntarily, or a frustrated crime, is greater than for 
one resulting from a simple attempt. 

c) Those who wilfully desist from perpetrating a 
crime are free from responsibility for the same, provided 
no damage and no scandal were caused by the attempted 
or frustrated crime—which, of course, they would have 
to repair, according to can. 2211. 

PART II 

PENALTIES 

(Can. 2214-2313.) 

To the Church must be vindicated the right, flowing 
from her constitution, to punish with spiritual as well as 
temporal penalties those of her subjects who transgress 
her laws. This right is natural and inherent in the 
Church, and therefore entirely independent of human au¬ 
thority. 

The Code advises moderation combined with firmness 
in the infliction of penalties. 


PENALTIES 


267 


TITLE IV 

DEFINITION, KINDS, INTERPRETATION, AND APPLICATION 

1. An ecclesiastical penalty means the privation of 
some good, inflicted by lawful authority for the cor¬ 
rection of a delinquent and in punishment of his crime. 
Its purpose is reformatory and punitive. Every society 
has, or should have, in view this aim,—to protect itself 
and lead the delinquent to a better life. 

2. Three different kinds are mentioned: censures or 
corrective (medicinal) penalties, vindictive penalties, and 
penal remedies and penances. 

A subdivision of penalties is based upon the measure 
and mode of their infliction: 

I. A fixed penalty is one so clearly determined by law 
or precept that there is no room for doubting what is 
meant. Thus, if the law says: “they incur excommuni¬ 
cation,” “are deprived of office,” etc., this and no other 
penalty must be understood. 

An undetermined or arbitrary penalty is one, the in¬ 
fliction of which is left to the prudent discretion of the 
judge or superior. The discretion may, however, con¬ 
cern the question whether any penalty is to be meted out 
at all, or what kind of a penalty, and in what measure. 
For the law may determine that a penalty must be in¬ 
flicted, but leave the kind and measure to the judge; e. g., 
where the phrase is used: <( pro gravitate delicti” Take, 
for instance, can. 2170. It says that the Ordinary must 
decree privation of income, but may inflict other penalties 
in addition thereto. Hence the law sometimes prescribes 
one penalty and intimates others. The law may also es¬ 
tablish the minimum penalty and leave it to the judge 


268 


PENAL CODE 


to inflict a severer one. Preceptive or obligatory terms 
in general are: “dcbet puniri,” “puniendus est ” “privan - 
dus” “ dcclarandus” or " declaretur inf amis”; facultative 
or arbitrary terms: “pro gravitate culpae,” “ad arbitrium 
superioris,” etc. 

2. Another distinction is that between penalties latae 
and ferendae sententiae. A fixed penalty is latae sen - 
tentiae if it is attached either by law or precept to the 
commission of a crime. The law uses, for instance, the 
terms ipso facto, ipso iure incurrit cxcommunicationem 
(can. 2343, privilegium canonis ) ; the superior decrees 
{per modum praecepti ) suspension to be ipso facto in¬ 
curred for a certain kind of crime; these are penalties 
latae sententiae. Ferendae sententiae are those which are 
to be inflicted by the judge or superior, although per¬ 
haps appointed by law. 

3. A fixed penalty latae sententiae as well as ferendae 
sententiae may be established by law {a iure). For in¬ 
stance, clerics who violate the privilegium canonis against 
cardinals and papal legates incur two penalties ipso iure 
latae sententiae and, besides, are to be deprived of their 
benefices, offices, dignities, which is a penalty ferendae 
sententiae, although both kinds of penalties are laid down 
in law (can. 2343). 

Ab homine is a penalty which, though established by 
law, is inflicted by way of a special order per modum 
praecepti peculiaris, or by a condemnatory judiciary sen¬ 
tence. 

Penalties must be understood to be ferendae sententiae, 
unless ipso iure or ipso facto, or similar terms are used. 
The general rule is that a penalty ferendae sententiae 
requires at least a summary trial. 

4. The rule for applying penalties is that they must be 
proportionate to the crime, which is to be judged ac- 


SUPERIOR WITH COERCIVE POWER 269 


cording to its imputability and the scandal and damage 
caused. 

5. The rules for interpretation may be thus stated: 

a) “In penalties the more favorable interpretation 
should be adopted,” which must be understood according 
to the general rules of interpretation. 

b) If there is doubt whether a penalty inflicted by the 
competent superior is just or unjust, the penalty must 
be borne in both the internal and external forum, unless 
an appeal with suspensory effect was lodged. 

c) Analogy is not admitted in interpreting penal laws. 
Hence there is no stretching from one person to another, 
no extending from one case to another, even if the 
reasons or circumstances of persons and cases are quite 
alike, nay, the reasons for extending the penalty seems 
even stronger. 


TITLE V 

SUPERIORS WITH COERCIVE POWER 

1. Those who enjoy legislative power, the Pope and 
the Ordinaries, are authorized to attach a penal sanction 
to their laws. Vicars-general need a special mandate to 
do so. 

2. The general rule is that no penalty is to be inflicted 
without a threat or canonical warning. This warning 
must contain a penalty of either ferendae or latae sen - 
tentiae before the transgression happens. For in case the 
transgression is proved, the penal sanction goes into ef¬ 
fect. This canonical warning is not required if scandal 
has been given or the transgression is of a particularly 
serious character. 


270 


PENAL CODE 


3. The judge, as such, has only to apply the penalty 
stated in law, and therefore should observe the rules of 
procedure, viz.: 

a) He is not allowed to increase a fixed penalty, unless 
extraordinary circumstances demand a severer punish¬ 
ment ; e. g., the atrocity of a crime, the scandal given, 
etc. The increase may consist of multiplication or added 
intensity; for instance, suspension and detention in a 
house of correction, or suspension from office and bene¬ 
fice, etc; 

b) If the penal law ferendae sententiae is couched in 
arbitrary terms ( verbis facultatizns) , it is left to the con¬ 
science and prudence of the judge to mete out 
the penalty or dictate the minimum penalty if this is 
fixed; 

c) If the wording of the penal law is compulsory ( ver¬ 
bis praeceptis) , the penalty must, as a rule, be inflicted. 
There are precepts couched in the subjunctive or gerun¬ 
dive form, e. g., “privetur ” “privandi sunt ” “debet 
puniri, suspendi, removeri,” etc. Yet even in this case the 
legislator leaves it to the conscience and prudence of the 
judge, both of which qualities suppose that he decides 
objectively, not subjectively or under the influence of 
passion. But he may also, if the case is such, delay or 
mitigate a penalty already fixed, and abstain from in¬ 
flicting it in case of sincere reform. 

d) Finally, if the sentence is a judiciary one, the judge 
must observe the rules given in can. 1968 ff. for pro¬ 
nouncing sentence. Besides, if a penalty, more especi¬ 
ally a censure, whether latae or ferendae sententiae, is to 
be inflicted by way of a particular order or precept, it 
must be declared to have been incurred ( latae sententiae ), 
or actually inflicted, in writing or before two witnesses, 
and the reasons for it given. 


WHO ARE SUBJECT TO PENAL LAWS 271 


TITLE VI 

WHO ARE SUBJECT TO PENAL LAWS 

1. An ecclesiastical penalty binds the delinquent every¬ 
where, even after the superior who inflicted it has gone 
out of office. This applies to penal laws in general, for 
there are, e. g., local interdicts which are merely territo¬ 
rial. But the crime must be such according to the terms 
of the law. 

2. Besides, penalties follow imputability. Hence: 

a) Affected ignorance (ignorantia affaetata ), i.e., the 
kind that is purposely fostered in order to avoid the 
trouble of ascertaining the law and to have a pretext for 
transgressing it, does not render one immune from in¬ 
curring the penalties latae sententiae, no matter whether 
this ignorance concerns the law itself or its penal sanc¬ 
tion,—not even if the law contains words like these: 
“praesumpserit” “ausus fuerit,” “scienter, studiose, te- 
merarie, consulto egerit,” i. e., even though the law ex¬ 
pressly demands a dolus. 

b) If the law contains the terms quoted above (“prae¬ 
sumpserit,” etc.) or similar ones, which require full 
knowledge and deliberation, every degree of diminished 
imputability, either of the intellect or the will, renders 
the offender with such lessened responsibility immune 
from penalties latae sententiae. 

c) If the law does not contain the terms “praesump¬ 
serit,” “ausus fuerit ” etc.: 

(a) Crass or supine ignorance (crassa vel su- 
pina ignorantia ) exempts from no penalty latae senten¬ 
tiae. 

(/?) Drunkenness, carelessness, mental weakness, im¬ 
petuous passions do not exempt from penalties latae 


272 


PENAL CODE 


sententiae, provided the responsibility, though somewhat 
diminished, is still grievously culpable. 

(y) Grave fear by no means excuses from penalties 
latae sententiae, if the crime involves contempt of faith 
or of ecclesiastical authority, or public damage to souls. 

d) Impuberes, i. e., boys before the fourteenth and girls 
before the twelfth year of age, completed, are excused 
from penalties latae sententiae, and should be punished 
rather by reformatory educational means than by cen¬ 
sures and severe vindictive penalties. 

e) Those who cooperate in a crime by conspiracy, or as 
accomplices or effective counselors and cooperators, are 
subject to the same penalty, though only one (in the 
singular) is mentioned in the penal law; unless the text 
has a contrary provision. 

3. A penalty latae sententiae, whether corrective or 
vindictive, binds the delinquent ipso facto both in the ex¬ 
ternal and in the internal forum, provided he is con¬ 
scious of the crime. However, says the text, if defama¬ 
tion should actually follow the application of this penalty, 
the delinquent is excused from executing the penalty as 
long as no declaratory sentence has been issued. In the 
external forum no one is allowed to demand this self¬ 
execution of the penalty on the part of the delinquent, 
unless the crime is notorious. No penalty can be in¬ 
flicted unless it is certain that the crime has been per¬ 
petrated and legitimate prescription has not set in 

TITLE VII 

REMISSION OF PENALTIES 

1. Penalties may be removed by way of absolution or 
dispensation. The former is applied to censures, the lat- 


REMISSION OF PENALTIES 


273 


ter to vindictive penalties. Both presuppose jurisdiction 
over the person as well as over the matter at issue, because 
of the juridical tie contracted by penalty. The judge 
who ex officio applies a penalty established by a superior, 
cannot remit the penalty thus inflicted. Having rendered 
the sentence, his office is completed. 

2. The Ordinary may remit all penalties latae sen- 
tentiae, either corrective or vindictive, established by 
common law, except the following: 

a) Cases brought before the civil ecclesiastical court, 
as when civil action is instituted in order to obtain dam¬ 
ages for a crime. 

b) Cases reserved to the Apostolic See, either simply, 
or especially, or most especially. 

c) Penalties entailing to hold benefices, offices, dig¬ 
nities in the Church, penalties referring to the active and 
passive vote and privation thereof, perpetual suspension, 
infamy by law, privation of advowson, and privileges or 
favors granted by the Apostolic See. 

In occult cases latae sententiae, established by common 
law, the Ordinary as well as any one delegated by him 
may remit the penalties. An exception to this general 
rule are the censures which are reserved either specialis- 
simo or speciali modo to the Holy See. In occult cases, 
the Ordinary may delegate another, as per can. 199, § 2, 
either for each separate case or habitually. 

3. A penalty may be remitted not only when the person 
is present, but also when he is absent, either uncondition¬ 
ally or with a condition attached, for instance, to present 
himself to the superior, or provided his amendment has 
lasted for a certain length of time. A remission may 
be valid either in the court of conscience only or in the 
external forum only. A remission extorted by physical 
compulsion or grave fear is ipso iure invalid. 


PENAL CODE 


274 


TITLE VIII 

CENSURES 

1. A censure is defined by the Code as a penalty by 
which a baptized person, delinquent and contumacious, is 
deprived of certain spiritual benefits, or benefits connected 
with spiritual ones, until he has given up his contumacy 
and obtained absolution. 

Contumacy may be said to cease (can. 2242, § 3), when 
the delinquent repents of the crime he has committed, 
makes proportionate satisfaction for the damage he has 
caused, and repairs the scandal given, or at least seriously 
promises to do so. Whether the repentance is sincere, 
the satisfaction sufficient, or the promise serious, must 
be judged by the one who is asked to give absolution. 

Recourse fr\om censure has only a devolutive effect, i. e., 
the whole case is thrown upon the court of appeal, but 
the one thus censured must conduct himself as if he 
were censured, i. e., abstain from every act of order, 
jurisdiction, or administration forbidden by the censure. 

2. Reservation of censures may be made either ab 
homine, i. e., by the lawful superior, or a hire, i. e., 
as stated by a general or particular law. Censures re¬ 
served ab homine are reserved to the one who inflicted 
the censure, to the former’s superior, or successor or 
delegate. Therefore, if a priest has been censured by 
his bishop, the censure may be reserved to the Pope, to 
the bishop’s successor, or to his delegate. 

Censures reserved a hire are: (a) those reserved to the 
Ordinary; (b) those reserved to the Apostolic See; and 
(c) those reserved to no one. To the Apostolic See some 
are (a) simply, some (b especially, and some (c) most 
especially reserved. 


CENSURES 


275 


Censures latae sententiae are reserved only if the res¬ 
ervation is expressly stated in the law or precept which 
contains or threatens the reservation. If a doubt exists 
concerning the reservation, it need not be observed, 
i. e., any confessor may absolve therefrom. Reservation 
of censures must be strictly interpreted. 

The effect of reservation depends on receiving the 
Sacraments thus: (a) If it prevents one from receiving 
the Sacraments, a reservation involves reservation of the 
sin to which the censure is attached; (b) If it does not 
prevent one from receiving the Sacraments, the sin is not 
reserved, even though the censure is. 

If one is excused from censure, or has been absolved 
therefrom, reservation of the sin ceases entirely. 

Can. 2247, § 1, forbids Ordinaries to attach another 
censure reserved to themselves to a crime already re¬ 
served to the Apostolic See. But we cannot agree with 
some writers who maintain the invalidity of a censure 
attached by the bishop to a censure already reserved to 
the Apostolic See. 

The territorial extent of reservation is thus stated in the 
Code: 

a) The reservation of censures made for a particular 
territory—by way of a territorial law—is restricted to 
the limits of that territory, diocese, or province, and has 
no binding force outside its boundaries, even though the 
person censured leaves this territory in order to be ab¬ 
solved, in other words, if he leaves his home in fraudem 
legis. 

b) If, however, an Ordinary or judge would inflict a 
censure and reserve it to himself by virtue of a special 
ordinance or condemnatory sentence (can. 2217, § 1, n. 
3), such a reserved censure would bind the censured 
person everywhere, so that he could not be absolved 


276 


PENAL CODE 


by any confessor unless the latter had obtained special 
faculties for the purpose. 

There is some comfort in can. 2247, § 3, because a 
confessor, especially when tired, may not always have 
all the reserved censures present in his mind. Hence, if 
a confessor, unaware of a reservation, would absolve a 
penitent from censure and guilt, the absolution from 
censure would be valid. Exception, however, is taken to 
censures inflicted ab homine and the four censures “most 
especially’’ reserved to the Apostolic See. 

3. Absolution from censures is required and may be 
claimed by such as recede from contumacy. A cen¬ 
sures duly removed never revive. One who has in¬ 
curred several censures must mention them in his peti¬ 
tion; but an absolution imparted in general terms is valid 
for all. One may be absolved from sin, and therefore 
be in the state of grace, yet remain under censure. On 
the other hand, when there is question of a censure which 
prevents the reception of the Sacraments, absolution from 
censure must be imparted before absolution from sin can 
be licitly granted. 

The formula of absolution is thus determined: (a) 

If absolution is given in the tribunal of penance (in 
foro sacramentali) , the usual form contained in the 
Roman Ritual should be employed, (b) In the non- 
sacramental forum (in foro non-sacramentali) , either for 
the court of conscience or for the external forum, any 
formula may be used if no excommunication is implied; 
hence also the short formula for the confessional is per¬ 
mitted. (c) If, however, absolution is to be given from 
excommunication, the formula prescribed in the Roman 
Ritual (or Pontifical) should, as a rule, be employed. 

Absolution given in foro externo affects both fora, the 
internal as well as the external. Concerning this there 


CENSURES 


277 


never was a doubt. If the absolution is given in foro 
interno, the person thus absolved may conduct himself 
as one absolved or freed from censure also concerning 
acts of the external forum, provided the scandal has been 
removed. 

4. Those empowered to absolve f rom censure are men¬ 
tioned in can. 2252-2254, which distinguish three classes 
of cases: normal, danger of death, and urgent. 

a) As to normal cases, i. e., cases which are neither 
urgent nor in danger of death, can. 2253 distinguishes 
as follows: 

(a) From non-reserved censures every duly approved 
confessor may validly and licitly absolve in the tribunal 
of penance. If absolution is to be given outside the con¬ 
fessional, it must be imparted by one who has jurisdic¬ 
tion over the delinquent in foro externo. 

(/?) From censures reserved ab homine, only he who 
has inflicted the censure, or his competent superior, or 
his successor or delegate, can absolve. 

(y) From censures reserved a iure, only the one who 
made the law, his superior, his successor or delegate, can 
absolve. 

The Ordinary may absolve his subjects everywhere 
from censures reserved episcopo or ordinario; the local 
Ordinary may also absolve peregrini. By “Ordinary” 
are understood all those who go by this name: the bishop, 
vicar-general, administrator, vicars and prefects apostolic, 
and major superiors of exempt religious organizations. 

Only the Apostolic See itself can de iure absolve from 
censures reserved to the Apostolic See; every inferior 
needs faculties, which are of a threefold kind: 

i.° A special faculty is required for absolving from 
censures which are reserved to the Apostolic See sim- 
plici modo. 


278 


PENAL CODE 


2. 0 A special faculty is required to absolve from cen¬ 
sures reserved to the Apostolic See modo speciali. 

3. 0 A most special faculty is needed to absolve from 
the four cases reserved to the Apostolic See modo spe - 
cialissimo. 

b) In danger of death one may be absolved by any 
priest, even though that priest has no jurisdiction or facul¬ 
ties to absolve from the censure in question; but after 
recovery, i. e., after being fully restored to health, 
the penitent is bound to have recourse to the proper 
authority, under penalty of falling back into the censure. 

If absolution has been given from a censure reserved 
ab homine, or modo specialissimo reserved to the Apostolic 
See, recourse must be had to the one who inflicted the 
censure, if it was a censure ab homine. The recourse 
must be had to the S. Poenitentiaria, or to the bishop, 
or to another endowed with the faculty of absolving, if 
the censure was a iure, i. e., specialissimo modo re¬ 
served to the Holy See. 

This recourse implies that the penitent abide by the 
order of the respective superior. The term “}nandatis 
parendi” implies willingness and promptness to carry 
out the injunctions given, either orally or in writing. 
Generally there is attached to the rescript of absolution 
the clause: e( iniunctis de iure iniungendis A This signi - 
fies: 

(a) that the censured party must give satisfaction to 
those who were hurt or damaged by the criminal act for 
which he or she was censured; 

(/ 3 ) that the scandal be repaired if any was given; 

(y) that other imposed works, such as sacramental 
confession or penance, be accepted. 

Danger of death may be supposed to exist when the 
penitent is in such a state that he has an equal chance 


CENSURES 


279 


for life or death, be the danger internal (sickness, 
wounds, birth, old age) or external (war, perilous jour¬ 
ney). 

c) In more urgent cases any duly approved confessor 
may validly and licitly absolve from each and every cen¬ 
sure, no matter how and to whom it is reserved, pro¬ 
vided it is a censure latae sententiae. 

Which cases are more urgent, is explained as follows: 

a) When these censures cannot be exteriorly observed 
without serious danger of scandal or loss of reputation, 
which may be the case if a priest would be obliged to ex¬ 
ercise the sacred ministry, or if a layman in good stand¬ 
ing would have to omit his Easter Communion; to judge 
whether this case is verified belongs to the confessor. 

/?) Or if it would be difficult for the penitent to re¬ 
main in the state of grievous sin for the length of time 
required to obtain the necessary faculty from the com¬ 
petent superior. Whether and under what circumstances 
it would be difficult for a penitent to remain in this 
state, must be left to the judgment of the confessor, who 
may apply the rule : “Poenitenti credendum est.” There¬ 
fore, if the penitent should say, that one day would be 
hard, we think our canon could be applied, though some 
authors hold that a week, or at least three or four days, 
are required. 

The obligation of the confessor under such circum¬ 
stances is: 

a) That he absolve in the tribunal of penance; hence 
he cannot absolve outside the confessional, because the 
forum sacramentale is not identical with the internal 
forum; 

/?) That he impose on the penitent the strict and griev¬ 
ous obligation of having recourse to the S. Poenitentiaria, 
or to a bishop or other superior endowed with the neces- 


28 o 


PENAL CODE 


sary faculties to absolve him, and to abide by their order; 

y) That this recourse be imposed under penalty oi 
reincidence (sub poena reincidentiae ), i.e., of falling 
back into specifically the same censure from which he is 
now absolved; 

8) To remind the penitent that recourse must be had 
within a month, to be reckoned probably from the day 
of absolution, or at least from the day when he be¬ 
came conscious of the obligation; 

e) To tell the penitent that recourse may be had by 
letter, in which case the proper names are to be sup¬ 
pressed and fictitious names used, or personally, because 
a personal visit to Rome is not excluded; 

£) The confessor should remember that he, too, is 
bound to have recourse to the competent authority, unless 
a serious obstacle prevents. 

The penitent is at liberty to approach another con¬ 
fessor endowed with the necessary faculties and to ob¬ 
tain absolution from him. This right is granted even in 
case the penitent has already been absolved (in urgent 
necessity) and has had recourse to the competent author¬ 
ity. But the penitent has again to confess the censured 
sin to this other confessor, in order that the latter may 
know the nature of the case and impose the necessary in¬ 
junctions. After receiving absolution the penitent has 
merely to carry out the orders given by the second con¬ 
fessor and is not bound to abide by the injunctions of 
the superior to whom recourse was had, which may reach 
him later. 

If, in some extraordinary case, recourse should be 
morally impossible, the confessor may grant absolution 
without imposing the obligation of recourse. However, 
in that case, another obligation must be imposed, viz., in- 
iunqtis de iure iniungendis, and a proportionate penance 


PARTICULAR CENSURES 


281 

and satisfaction for the censure. This obligation is so 
grave that if the penitent would not comply with the pen¬ 
ance imposed and with the demand of satisfaction within 
the time fixed by the confessor, he would fall back into 
the same censure. 

From this favor of omitting the recourse is excluded 
the case of absolutio complicis (can. 2367) ; poverty or 
the inconvenience of seeking another confessor are not 
admitted as excuses. 

Particular Censures 

These are: excommunication, interdict, suspension. 

Excommunication is always a censure, whereas inter¬ 
dict and suspension may be either censures or vindictive 
penalties; if it is doubtful whether they were inflicted 
as a censure or as a vindictive penalty, they are presumed 
to be censures. 

Suspension is proper to the clergy; an interdict may 
be inflicted also on laymen, nay, even on places. 

There are two terms which the Code frequently uses 
in connection with penalties and explains more partic¬ 
ularly : 

a) By divine offices are to be understood those func¬ 
tions of power of order ( potestatis ordinis) which have 
been established by divine or ecclesiastical authority and 
are performed only by the clergy. Such are the celebra¬ 
tion of Holy Mass, the administration of the Sacraments 
and sacramentals (blessings, sepulture, public service, 
preaching, choir service, processions), etc. 

b) Legal ecclesiastical acts are those of official adminis¬ 
trators of ecclesiastical property; those of the following 
persons employed in the ecclesiastical court: judge, au¬ 
ditor, relator, defensor vinculi (for marriage and ordina- 


282 


PENAL CODE 


tion), fiscal promotor and promotor of the faith (for 
beatification and canonization), courier and beadle 
lawyer and proxy; those of sponsors at Baptism and Con¬ 
firmation;—the (active) voice or right of voting at ec¬ 
clesiastical elections, including those held by monastic 
chapters and chapters of religious communities and acts 
of actual (not habitual) exercise of the ins pair onatus or 
advowson. 


I. Excommunication 

1. Excommunication means the act of excluding, or 
the state of being excluded, from fellowship with the 
faithful; practically speaking, the Church is the society 
of the faithful. 

2. Its inseparable effects are: 

a) An excommunicated person may not assist at divine 
services; the only exception is hearing the word of God, 
which is not forbidden. 

b) He may not receive the Sacraments, and after a 
declaratory or condemnatory sentence cannot even receive 
sacramentals. 

c) He cannot administer the Sacraments and sacra¬ 
mentals, nor say Mass. 

d) The excommunicated do not partake of the in¬ 
dulgences, suffrages, and public prayers of the Church, 
either by way of satisfaction or of impetration. 

e) They are excluded from legal acts and acts of juris¬ 
diction. 

f) No excommunicated person may obtain any dignity, 
office, benefice, ecclesiastical pension, or other commission 
in the Church. 

g) No one may be licitly promoted to orders as long 
as he is excommunicated. Order is here taken according 


EXCOMMUNICATION 


283 


to can. 950, i.e., including all orders, even tonsure; for 
there is no reason why the term should be restricted to 
“holy” orders, nor does the context call for a milder in¬ 
terpretation. 

h) No one excommunicated by a declaratory or con¬ 
demnatory sentence (including vitandi) can obtain any 
papal favor, unless mention is made of the excommunica¬ 
tion in the papal rescript. 

i) A clergyman remains deprived of the fruits, i. e., 
revenues, salary, income, accruing from the dignity, 
office, benefice, pension, charge, which he holds in the 
Church. 

3. There is a distinction between an ex communicates 
toleratus and a vitandus which concerns especially ritual 
and social intercourse. 

a) Passive assistance may be permitted to a toleratus, 
and it is not necessary to expel him from an assembly, e. g., 
from the church or chapel, even though the priest who 
says Mass and others may know of the excommunication. 

b) Active assistance must be denied not only to vi¬ 
tandi, but also to every other excommunicated person, 
even though toleratus, after a declaratory or condem¬ 
natory sentence has been issued or the excommunication 
has become notorious. 

c) Vitandi are denied active as well as passive assist¬ 
ance and must be expelled from the place where divine 
services are held. Should expulsion be impossible, be¬ 
cause of great inconvenience, the divine office must cease 
at once, unless the rubrics demand its continuance. 

d) Provided a minister is not a vitandus or under 
a declaratory or condemnatory sentence, the faithful may, 
for any just reason, ask him to administer the Sacraments 
and sacramentals to them. This is more especially true 
if no other minister is available, in which case the ex- 


284 


PENAL CODE 


communicated minister thus asked may administer the 
Sacraments and sacramentals without as much as inquir¬ 
ing into the reason why the petitioner wishes to receive 
them. 

If the minister, i. e., priest, is a vitandus or excom¬ 
municated by virtue of a condemnatory or declaratory 
sentence, the faithful may demand from him absolution 
in danger of death, even though other priests are present 
who are not excommunicated; but other Sacraments or 
sacramentals they may receive from such priest only if 
no other ministers are available. 

e) The faithful shall avoid social intercourse with 
vitandi. From this obligation are exempted those bound 
by matrimonial bonds, parents, children, servants and 
subjects. Besides, any reasonable cause may excuse 
others. 


II. The Interdict 

1. The interdict is defined as a censure by which the 
faithful, while remaining in communion with the Church, 
are denied certain sacred things or benefits. 

It is personal when the prohibition directly concerns 
the personal use of certain sacred things, i. e., when per¬ 
sons are directly intended by the interdict. 

It is local when in recto the place, and only indirectly 
the persons living in that place, are struck by this penalty. 
In interdicted places the administration or reception of 
sacred things or spiritual benefits is forbidden. 

A general personal interdict is one laid upon a corpora¬ 
tion as such, for instance, the entire (Catholic) popula¬ 
tion of a realm, province, diocese, parish, chapter, or all 
the members of a religious community. 

A general local interdict is one inflicted upon a place 


SUSPENSION 285 

comprising several distinct places, or juridical entities, 
for instance, a diocese, province, parish. 

A special personal interdict is one imposed on specified 
persons, for instance, on the pastor of a parish or the 
administrator of a diocese. 

A particular local interdict is one inflicted on a specified 
place, taking place (locus) in the stricter sense of local¬ 
ity, for instance, a specially designated church, chapel, 
altar, or cemetery. 

2. A general prohibition extends to divine office and 
sacred rites. But the administration of Sacraments and 
sacramentals to the dying is allowed. On Christmas, 
Easter, Pentecost, Corpus Christi, and the Assumption 
(Aug. 15) the local interdict is suspended, and only the 
conferring of orders and the solemn nuptial blessing are 
forbidden. Hence solemn services with all pomp and 
liturgical display may be celebrated, but only on these 
days themselves, not during the octave. In parish 
churches a low Mass may be celebrated daily; external 
pomp, however, must be avoided. Priests who gave no 
cause to the interdict may say Mass, the faithful, how¬ 
ever, being excluded. Personally interdicted persons 
are debarred, like the excommunicated, from administer¬ 
ing and receiving the Sacraments. 

If a cemetery is interdicted, the adjoining church is 
not interdicted, even though it belongs to the cemetery; 
but all oratories erected on the cemetery are included. 

III. Suspension 

1. Suspension is a censure by which a cleric is forbid¬ 
den to exercise the rights attached to his office, or bene¬ 
fice, or both. 

2. Since the effects of suspension are separable, it is 


286 


PENAL CODE 


evident that they follow the various kinds of suspension 
in varying degrees. 

a) A general suspension deprives a cleric of all the 
rights pertaining to his office as well as his benefice; and 
if the suspension is not further determined in the decree 
or precept of the superior or judge, a general suspension 
is to be understood, i. e. } one accompanied by all the effects 
stated in this article. 

b) A special suspension is twofold: from office or from 
benefice. The special suspension from office may be 
either total or partial, according as all the rights attached 
to the office, or some only, are taken away. The special 
suspension from benefice, too, may be total or partial, 
since the administration of the benefice may be taken 
away, or only its revenues. 

The distinction of latae and ferendae sententiae also 
applies to suspension. 

3. If suspension from office is inflicted without any 
further restriction, it forbids the exercise of any act of 
the power of order or jurisdiction, and of mere ad¬ 
ministration attached to the office itself. But the ad¬ 
ministration of one’s benefice is not withdrawn. Be¬ 
sides, it should be noted that the office itself is not lost, 
for the effect touches only the exercise of rights. 

4. A modification of the effects is admitted by the 
Code under the following conditions: 

a) If a suspension is incurred that forbids the ad¬ 
ministration of Sacraments and sacramentals, as is the 
case in suspensions ab officio and a divinis, the suspended 
cleric may lawfully administer them only in case he is 
legitimately requested to do so by the faithful; nor is he 
obliged to ask for the reason of the demand. This 
favor, however, supposes that no condemnatory or 
declaratory sentence has been pronounced against him. 


VINDICTIVE PENALTIES 


287 


b) When the suspension, e. g., ab officio, a iurisdic- 
tione, a deiinito et certo ministerio ( e.gaudiendi con- 
fessiones) forbids an act of jurisdiction either in the in¬ 
ternal or external forum, the act performed under such 
censure is invalid, if a condemnatory or declaratory sen¬ 
tence has been pronounced or if the superior has expressly 
declared that the power of jurisdiction is withdrawn; 
but if no such sentence or such express declaration has 
been made, the act of jurisdiction is valid, even though 
illicit. Nay, it even becomes lawful if the minister has 
been legitimately asked by the faithful. In danger of 
death the act of jurisdiction which is exercised in giving 
sacramental absolution is valid and licit, even though 
other priests or ministers are available. 

TITLE IX 

VINDICTIVE PENALTIES 

1. Vindictive 'penalties are intended directly for the ex¬ 
piation of crimes, and consequently their relaxation does 
not depend on the mere cessation of contumacy. 

2. Appeal or recourse from vindictive penalties is ad¬ 
mitted, and this appeal has a suspensive, not merely a 
devolutive effect, unless the law contains an express pro¬ 
vision to the contrary. 

3. These penalties, properly speaking, need a dispensa¬ 
tion in order to cease. Dispensation can be granted only 
by the prelate who inflicted the penalty and, therefore, a 
penalty inflicted by common law can be remitted only 
by the Pope; a penalty inflicted by a particular law or 
statute can be remitted by the one who enacted that 
particular law. However, confessors may dispense in 
occult and urgent cases, provided the penalty, which is 


288 


PENAL CODE 


supposed to be latae sententiae, would, at least probably, 
cause the loss of good name to the delinquent and 
scandal to the people. Of the existence of this condi¬ 
tion the petitioner may judge and his testimony must be 
believed. 

But this power is furthermore limited in this sense, 
that the confessor in the confessional—therefore not 
merely in foro inferno —can only suspend the obligation 
of observing the vindictive penalty to the duty of having 
recourse to the proper authority in writing, through the 
confessor, within one month from the date of confession, 
if this can be done without serious inconvenience. This 
recourse must be had, without mentioning names, to the 
S. Poenitentiaria or to the bishop, if he possesses the 
necessary faculties. The penitent must then abide by 
their orders. 

4. Single penalties, for instance, are: interdict, trans¬ 
fer, privation or temporary suspension of benefices and 
pensions, privation of academic degrees, disability and 
infamy. 

5. There is a twofold infamy, one of law, the other of 
fact, (a) Infamy of law ( iuris ) is that expressly stated 
in common law as a penalty for certain crimes; it is legal 
conviction of a crime, (b) Infamy of fact ( facti ) exists 
when one, by reason of a crime committed, or on account 
of bad character, has lost his good reputation with up¬ 
right and serious Catholics. Whether and when this is 
the case, is for the Ordinary to decide. 

The effects of legal infamy ( infamia iuris), which may 
be inflicted as a penalty, are: irregularity and disability, 
viz., disqualification for any ecclesiastical benefice, pen¬ 
sion, office, dignity, and any legal act or right of any 
kind. 

6. Infamia facti produces the following effects: 


VINDICTIVE PENALTIES 


289 


1. ° It constitutes a canonical impediment for receiv¬ 
ing orders, but does not render one irregular (can. 987, 
n. 7). 

2. °It disqualifies one from lawfully (not validly) ac¬ 
cepting ecclesiastical dignities, benefices, or offices. 

3. 0 Infamous persons may not exercise any function 
of the sacred ministry which may ordinarily be performed 
by laymen, as stated above. 

4. 0 They must be repelled from exercising actus 
Icgitimi. 

Legal infamy is removed only by an Apostolic dis¬ 
pensation ; this is true with one exception, viz., occult 
urgent cases, in which can. 2290 may be applied. 

Infamy of fact (infamia facti) ceases by the rehabil¬ 
itation of one’s good name, i. e., by regaining one’s lost 
reputation with upright and serious Catholics. This de¬ 
pends upon particular circumstances, continued good be¬ 
havior, and, above all, the judgment of the Ordinary. 

7. Among the severest penalties which may be inflicted 
are deposition and degradation. 

Deposition consists in the privation of all the titles that 
a clergyman may possess, except the clerical state itself 
and its essential privileges. Its effects are described in 
can. 23 03 as follows: 

a) The obligations inherent in the order received, as 
well as the clerical privileges, remain. Therefore, even 
a deposed cleric, if he has received subdeaconship, must 
recite the Breviary, remain unmarried (can. 132, 135), 
and retains the prerogatives mentioned in can. 118-123. 

b) A deposed cleric is ipso facto suspended from office; 

c) He is disqualified for any office, dignity, benefice, 
pension or ecclesiastical charge (munm) ; 

d) He is deprived of all offices, dignities, benefices, 
pensions, and charges that he may hold, even though he 


290 


PENAL CODE 


has been ordained on the title of benefice or pension. 
However, in case of the benefice or pension being the 
title on which the clergyman was ordained, the Ordinary 
should act charitably towards a needy cleric and provide 
him with the necessary support, so that he may not be 
compelled to beg and so disgrace the clerical state. 

No juridical claim can be asserted against this chari¬ 
table support. There is no such penalty latae sententiae 
of deposition in the Code; all mentioned there are 
ferendae sententiae. 

Degradation, either verbal or real, consists in deposi¬ 
tion, perpetual privation of the clerical dress, and reduc¬ 
tion to the lay state. This penalty, too, is ferendae sen¬ 
tentiae only. 


TITLE X 

PENAL REMEDIES AND PENANCES 

I. There are four kinds of preventive remedies: warn¬ 
ing, correction, order or precept, and surveillance. Both 
warning and rebuke, if public, must be made either be¬ 
fore a notary, who in this case may also be the chancellor, 
or in the presence of two witnesses, who may be discreet 
laymen, or by letter, which should be registered. They 
may be made more than once. 

A precept, order, or injunction is a special command 
of the bishop, accompanied by threats of punishment in 
case of disobedience. It may be served after a warning 
or a rebuke has proved ineffective, or if it is likely that 
these two measures, warning and rebuke, will not produce 
the desired effect. 

Surveillance or vigilance may be demanded in a very 
serious case, especially if a person is exposed to the dan¬ 
ger of relapse into the same crime. 


RESERVED CENSURES 


291 


2. The principal, though not the only penances, are: 

a) To recite certain prayers, e. g the Penitential 
Psalms, or the Stations of the Cross, or the Rosary; 

b) To make a pilgrimage to a certain shrine, provided 
the penitent has the means to do so and is physically able; 
or to perform other devotional works, such as taking 
care of the church or of an altar; 

c) To observe special fasts, if one’s work or family 
permits; 

d) To give alms for charitable purposes; 

e) To retire for some days into a religious house. 

PART III 

Penalties for individual crimes 

(Canons 2314-2414) 

The penalties, and for the most part they are censures, 
are here placed according to the gradation of reservation, 
together with a few notes, as it were footnotes, if some of 
these censures should require such. This method ap¬ 
pears more practical for the use of pastors and con¬ 
fessors, and may, therefore, serve as an excuse for de¬ 
parting from the arrangement of the Code. 

1 . Excomweumcations Reserved to the Holy See 
Modo Specialissimo 

1. Whoever throws away the Sacred Species, or carries 
them away or retains them for an evil purpose (can. 
2320). 

2. Those who lay violent hands on the person of the 
Roman Pontiff (can. 2343, § 1, n. 1). 

3. Those who absolve, or feign to absolve, an ac - 


292 


PENAL CODE 


complice in peccato turpi, even if the confessor absolves 
an accomplice who does not confess the sin of complicity 
from which he was not yet absolved, but conceals that sin, 
because he was induced by the confessor not to confess 
it, either directly or indirectly (can. 2367). 1 

4. Confessors who dare ( praesumpserint ) to break the 
seal of confession directly (can. 2369). 

In order to absolve validly and licitly from these four 
censures a most especial faculty of the Holy See is re¬ 
quired. Neither the Apostolic Delegates (see n. 4 of their 
faculties; Vol. I of our Commentary, p. 265), nor the 
Ordinaries, according to Formulary III, issued March 
17, 1922, have obtained this faculty. 


II. Excommunications Reserved to the Holy See 

Modo Speciali 

1. All apostates from the Christian faith and all her¬ 
etics and schismatics (can. 2314). 2 

1 If the sin of complicity had been absolved by another con¬ 
fessor, the censure is not incurred by the guilty priest, even 
though the accomplice should mention it to him in the confes¬ 
sional. If the confessor does not recognize the penitent, or has 
a well-founded doubt about the identity of the person, the ab¬ 
solution would be licit and valid, and no censure incurred. Even 
in danger of death another priest must be called to hear the 
accomplice’s confession, if it can be done without serious infamy 
or scandal; otherwise the censure is incurred. 

2 Formulary III grants Ordinaries the faculty to absolve all 
penitents who have incurred the aforesaid penalty on account of 
heresy —apostasy and schism are not mentioned—no matter 
whether they uttered the heresy in the presence of others or not; 
but they must denounce the professional teachers or heresy before 
absolution, if possible, or at least seriously promise to do so after¬ 
wards ; they must also, under the same condition, denounce the 
accomplices of these teachers if they are religious or ecclesiastics. 


RESERVED CENSURES 


293 


2. Those who publish books written by apostates, her¬ 
etics, or schismatics, after the books have been effectively 
published, and those who defend such books or others 
nominally forbidden by Apostolic letter, or who know- 
ingly read or retain them without due permission (can. 
2318). 3 

3. Persons not in sacerdotal orders, who pretend to 
say Mass or to hear sacramental confession (can. 
2322). 

4. Individuals, of whatever state, rank, or condition, 
who appeal from laws, decrees, or ordinances of a gov¬ 
erning Pope to a future council (can. 2332). 

5. Those who have recourse to the civil power in order 
to impede letters and documents coming from the Apos¬ 
tolic See or from its legates, their promulgation or exe¬ 
cution (can. 2333). 

6. Those who issue laws, ordinances or decrees against 
the liberty and rights of the Church; also those who, 
in order to impede the exercise of ecclesiastical jurisdic¬ 
tion in the external as well as internal forum, either 
directly or indirectly have recourse to any secular power 
(can. 2334). 4 

7. Persons who compel to appear before the civil court 

Abjuration is made secretly before the confessor. From this 
benefit or faculty are excluded those who purposely disseminate 
heresy among Catholics. A wholesome penance should be im¬ 
posed on those absolved, by virtue of this faculty, and the scandal 
repaired as much as possible. 

3 The above-named Formulary grants the faculty to absolve 
from this excommunication. We remind the Ordinaries that 
these faculties are to be obtained; they are not ipso facto granted 
by reason of having received the Formulary. 

4 Ordinaries, by virtue of Formulary III, may absolve from 
this censure, as far as the second clause is concerned (impedientes 
iurisdictionem ecclesiastic am ). 


294 


PENAL CODE 


—against the privilegium fori —Cardinals, legates of the 
Apostolic See, higher officials of the Roman Court, or 
their own Ordinary (can. 2341). 5 

8. Those who lay violent hands on Cardinals, legates, 
patriarchs, archbishops, or bishops, even though only 
titular (can. 2343). 

9. Usurpers or retainers of property or rights of the 
Roman Church (can. 2345). 

10. Those who forge or falsify decrees or rescripts of 
the Apostolic See, and those who knowingly make use 
of such falsified documents (can. 2360). 

11. Those who either themselves or through others 
falsely accuse a confessor of the crime of solicitation to 
his superior (can. 2363). 


III. Excommunications Reserved to the Holy See 

Simpliciter 

1. Those who make profit from indulgences (can. 
2327). 

2. Those who enlist in Masonic sects or other associ¬ 
ations of the same kind, which plot against the Church or 
against lawful civil authority (can. 2335). 6 

3. Those who, without the necessary faculty, dare to 
absolve any one from excommunication latae sententiae, 

5 This would include also such as compel the aforesaid persons 
to appear as witnesses. However, it is at least doubtful whether 
this penalty binds in countries where the privilegium fori does 
not, de facto, exist. 

6 Formulary III contains the faculty to absolve such persons, 
provided they sever their connection with these societies, de¬ 
nounce ecclesiastics or religious who belong to them, and 
return books, manuscripts and emblems, or at least seriously 
promise to do so. 


RESERVED CENSURES 


295 

either most especially or especially reserved to the Apos¬ 
tolic See (can. 233s). 7 

4. Those who aid or favor an excommunicatus vitandus 
in the crime for which he was excommunicated (can. 

2338, § 2). 

5. Those who dare to hale before a lay judge any 
bishop (not their own Ordinary), or an abbot nullius or 
prelate nullius, or one of the major superiors of religious 
institutes (can. 2341). 

6. Those who violate the enclosure of Regulars, and 
nuns with papal enclosure who leave the enclosure (can. 

2342). 

7. Those who, either personally or through others, dare 
to appropriate to their own use and usurp ecclesiastical 
property of whatever kind, and those who dare to prevent 
either individual or corporate ecclesiastical persons from 
receiving the fruits or income due to them (can. 2346). 

8. Those who participate in a duel, or challenge others 
to it, or accept the challenge, or assist at, or purposely 
witness a duel (can. 2351). 8 

9. Clerics in higher orders, and regulars or nuns with 

7 “Praesumentcs” supposes a rash or presumptuous act, and, 
therefore, every degree of diminished imputability renders the 
offender immune from this penalty (can. 2229, § 2). Besides, 
can. 2227, § 3, says that if a confessor, unaware of the reservation, 
absolves from censure and sin, the specialissimo modo absolution 
is valid unless the censure is reserved, or ab homine. 

8 Formulary III grants the faculty to absolve from this cen¬ 
sure, provided the case has not yet been brought before the 
ecclesiastical court— ad forum externum nondum deductum. This 
means that the duelers have not yet been accused to the Or¬ 
dinary, and that the latter has not yet issued a summons to the 
parties in question to appear before his tribunal. After the sum¬ 
mons has been intimated, the case is certainly ad forum externum 
deductus. 


296 


PENAL CODE 


solemn vows, who presume to contract a marriage, even 
though it be only a civil one, and all those who contract 
such a marriage with one of the aforesaid persons (can. 
2388). 

10. Those who commit simony in any ecclesiastical of¬ 
fice, benefice or dignity (can. 2392). 

11. The vicar-capitular (administrator) and members 
of the chapter (our diocesan consultors), as well as out¬ 
siders who either personally or through intermediary per¬ 
sons withdraw, destroy, conceal, or substantially alter 
any document belonging to the episcopal court (can. 

2405). 

IV. Excommunications Reserved to the Ordinary 9 

1. Those who contract marriage before a non-Cath- 
olic minister as such, i. e., qua sacris addiatus (can. 2319, 
§ L n. 1). 

2. Those who contract marriage with the implied or 
express agreement that all or some of the children shall 
be educated outside the Catholic Church (can. 2319, § 1, 
n. 2). 

3. Those who knowingly dare to offer their children 
to non-Catholic ministers for baptism (can. 2319, § I, 

n. 3)- 

4. Parents or those holding their place, who knowingly 

9 The Ordinary is entitled to communicate this power, which 
is an ordinary one, to others, either to the full extent or in part, 
either for all time or for a certain length of time, and, therefore, 
may lawfully and validly insert it in the “diocesan faculties.” 
This is plainly stated in can. 199, § 1. Should he do it? We 
answer that he may take a directive norm from can. 897, which 
tells him that reservation is intended to uproot some inveterate 
crime and to restore discipline. If this is not the case, the Ordi¬ 
nary had better make it as lenient as possible. 


RESERVED CENSURES 


297 

offer their children to be educated or brought up in a 
non-Catholic denomination ( ib n. 4). 

5. Those who manufacture false relics or knowingly 
sell or distribute them or have them exposed 10 to the 
public veneration of the faithful (can. 2326). 

6. Those who lay violent hands on the person of clerics 
or religious of either sex (also novices and members of 
religious associations). 

7. Those who procure abortion, the mother not ex¬ 
cepted (can. 2350). 

8. Apostate religious of non-exempt and lay institutes 
(can, 2385). 11 

9. All religious with simple vows who presume to con¬ 
tract marriage, and those who contract marriage with 
such a religious (can. 2388). 

V. Excommunication Reserved to No One ( Nemini ) 

1. Authors and publishers who print books of Sacred 
Scripture, or annotations and commentaries thereon, with¬ 
out due permission (can. 2318). 

2. Those who dare to command or compel others 
to give a Christian burial to infidels, apostates 
from the faith, heretics, or other excommunicated or 
interdicted persons (can. 2339). 

3. Those who knowingly neglect to obtain the papal in- 
dult required for the alienation of ecclesiastical property 
to the amount of more than 30,000 francs, also those who 
receive anything through such an unlawful deal, as well as 
those who give their consent (can. 2347). 

10 Also exempt religious are subject to this censure; see can. 
1283. 

11 Apostates of exempt institutes are subject to their own Ordi¬ 
nary (can. cit.). 


298 


PENAL CODE 


4. All those who, no matter what their dignity, in any 
way compel a man to embrace the clerical state, and 
those who in any way compel a man or woman to enter 
the religious state or to make religious profession, be 
it solemn or simple, perpetual or temporary (can. 2352). 

5. Those who knowingly omit to denounce, within a 
month, a confessor who solicited them ad turpia in the 
confessional,—from which censure the neglectful penitent 
cannot be absolved unless he or she has complied with or 
seriously promised to satisfy, this obligation (can. 2368). 

VI. Interdicts 

1. Corporations, such as universities, colleges, chapters 
and other juridical persons who appeal from laws, de¬ 
crees or ordinances of the ruling Pope to a general 
council (can. 2332) incur excommunication reserved to 
the Holy See modo speciali. 

2. Those who knowingly celebrate or have others cele¬ 
brate divine offices in interdicted places, and those who 
knowingly admit to the celebration of divine offices clerics 
who have sustained a declaratory or condemnatory sen¬ 
tence of excommunication, interdict or suspension, incur 
the interdict from entering into the church —ab ingressu 
ecclesiae ,—reserved to the one whose sentence they have 
disregarded (can. 2338, § 3). 

3. Those who are the cause of a local interdict, or 
of an interdict laid upon a community or corporation, 
are ipso facto personally interdicted (can. 2338, § 4). 

4. Those who, of their own accord, grant Christian 
burial to such as are not entitled to it, incur the interdict 
ab ingressu ecclesiae, reserved to the Ordinary (can. 

2339)- 


RESERVED CENSURES 


299 


VII. Suspensions 

1. The following incur suspension reserved to the 
Apostolic See: 

a) A bishop who consecrates another, and the as¬ 
sistant bishops or the priests taking their place, as well 
as the one who receives episcopal consecration without 
having obtained the Apostolic mandate (can. 2370). 

b) Clerics (also bishops) who have knowingly or¬ 
dained any one, as well as those who have been ordained 
through simony, and those who administer or receive 
other Sacraments simoniacally (can. 2371). 

c) Suspension a divinis is incurred by those who dare 
to receive Orders from an excommunicated, suspended, 
or interdicted minister, provided he has been declared 
such or condemned to one of the aforesaid penalties; or 
from a notorious apostate, heretic, or schismatic (can. 
2372). 

d) Religious in higher orders, whose profession has 
been declared null and void on account of deceit ad¬ 
mitted by them, remain ipso facto suspended until the 
Apostolic See shall have made provision for them (can. 

2 3 8 7 )• 

2. Suspensions reserved to the Ordinary are: 

a) If a clergyman brings another clergyman of in¬ 
ferior rank than prelates before the civil court, without 
due permission, he is suspended from office. In case of 
exempt religious the Ordinary is their superior (can. 

2 341 ). 

b) A religious in higher orders, who i& a fugitive, 
incurs suspension, which must be understood as total, 
reserved to his superior (can. 2386). 

3. Suspensions reserved to no one: 

a) Priests who dare to absolve from reserved sins 
are ipso facto suspended from hearing confessions (can. 


300 


PENAL CODE 


2366), if neither by law (can. 900) nor by virtue of 
faculties absolution is rashly imparted. 

b) Ipso facto suspended from the exercise of an order 
illegally received are those who maliciously present them¬ 
selves for ordination without any dimissorial, or with 
false dimissorial letters, or without having reached the 
canonical age, or who, without observing the prescribed 
order, permit themselves to be ordained per sal turn (can. 

2374 ' K 

c) A cleric who dares to resign an ecclesiastical of¬ 
fice, benefice, or dignity into the hands of laymen, ipso 
facto incurs suspension a divinis (can. 2400). 

d) Abbots nullius or prelates nullius who, being ob¬ 
liged to receive the abbatial blessing, neglect to receive 
it, are ipso facto suspended from jurisdiction (can. 2403). 

e) Vicars-capitular (our administrators) who grant 
dimissorials against the ruling of the law (can. 958, § 1, 
n. 3) ipso facto incur suspension a divinis (can. 2409). 

f) Religious superiors who dare, against the ruling of 
the law (can. 965-967), to send their ordinands to an¬ 
other bishop, are ipso facto suspended from saying Mass 
for one month (can. 2410). 

VIII. Degradation, 

which, however, is only ferendae sententiae and, there¬ 
fore, requires a canonical warning in each and every case, 
may be pronounced: 

1. Against clerics who have joined a non-Catholic sect 
or publicly professed themselves to be members thereof 
(can. 2314). 

2. Against clerics who lay violent hands on the person 
of the Roman Pontiff (can. 2343). 


RESERVED CENSURES 


301 


3. Against clerics guilty of homicide (can. 2354). 

4. Against clerics guilty of very serious solicitation 
(can. 2368). 

5. Against clerics in higher orders who, after having 
attempted marriage, do not repent (can. 2388). 

IX. Deposition, 

of which the same must be said as of the preceding 
penalty, may be inflicted: 

1. Against clerics who apostatize from the Christian 
faith or become heretics or schismatics (can. 2314). 

2. Against clerics who desecrate consecrated species 
(can. 2320). 

3. Against clerics who say Mass though they are not 
priests (can. 2322). 

4. Against clerics who desecrate corpses and graves 
(can. 2328). 

5. Against clerics procuring abortion (can. 2350). 

6. Against clerics committing one of the various crimes 
mentioned in can. 2354, provided they have been found 
guilty in the civil court (can. 2354). 

7. Against clerics found guilty of very serious trans¬ 
gressions contra sextum, as mentioned in can. 2359. 

8. Against clerics in higher orders who refuse to wear 
the clerical dress and have taken up a mode of life in¬ 
compatible with the clerical state (can. 2379). 

9. Against clerics who illegally take possession of an 
office, benefice, or dignity, as stated in can. 2394. 

10. Against clerics who retain an office, benefice or 
dignity of which they have been lawfully deprived, or 
from which they have been lawfully removed, or who 
oppose such privation or removal (can. 2401). 


302 


PENAL CODE 


X. Infamia Iuris 

1. Ipso facto infamous are: 

a) Those mentioned above (IX, 2) ; 

b) Those mentioned above (IX, 4) ; 

c) Those who lay violent hands on the person of the 
Roman Pontiff or of Cardinals or legates of the Roman 
Pontiff (can. 2343) ; 

d) Duelers and their seconds or patrini (can. 2351); 

e) Bigamists in the true sense of the word (can. 

235<5 ) ; 

f) Laymen condemned by the civil court for certain 
crimes contra sextum: with minors, rape, sodomy, incest, 
panderage (can. 2357). 

2. To be declared infamous are: 

a) Apostates, heretics, schismatics (can. 2314) ; 

b) Clerics guilty of crimes mentioned under f), n. 1 
(can. 235a). 

XI. Privation • of Office or Benefice 

is either ipso facto incurred, or must be, or may be in¬ 
flicted in certain cases. 

1. It is ipso facto incurred: 

a) By an excommunicatus vitandus (can. 2266) ; 

b) By those who have taken possession of another of¬ 
fice or benefice incompatible with one already possessed; 
this illegal retaining of two incompatible benefices entails 
the loss of both (can. 2396) ; 

c) By Cardinals who refuse to take the oath required 
of them (can. 2397); 

d) By bishops who neglect to receive the episcopal 
consecration within six months after their appointment 
has been intimated to them (can. 2398). 

2. It must be inflicted: 


RESERVED CENSURES 


303 


a) On concubinarians, according to can. 2177 ff.; 

b) On clerics who become apostates, heretics, or schis¬ 
matics (can. 2314) ; 

c) On conspirators against the authority of the Roman 
Pontiff, or his legate, or their own Ordinary, or against 
the lawful commands of these authorities (can. 2331, § 

2); 

d) On clerics who remain for six months under the 
censure of suspension, if they do not give up their con¬ 
tumacy within a month from the date of the canonical 
warning (can. 2340, § 2) ; 

e) On clerics who lay violent hands on the person 
of Cardinals and legates of the Roman Pontiff (can. 
2343 . § 2); 

f) On clerics usurping property belonging to the 
Roman Church (can. 2345) ; 

g) On clerics unjustly usurping other church prop¬ 
erty (can. 2346) ; 

h) On clerics laying hands on themselves (can. 2350, 

§2); 

i) On clerics committing certain crimes mentioned 
in can. 2354; 

k) On clerics guilty of gross transgressions contra 
sextum (can. 2359). 

3. It may be indicted: 

a) On clerics who traffic with Mass stipends or com¬ 
mit fraud by retaining parts of stipends or neglecting to 
say as many Masses as they have received stipends (can. 

2324) ; 

b) On clerics belonging to forbidden sects (can. 

2335 f-); 

c) On clerics infringing the liberty or rights of the 
Church or impeding the exercise of ecclesiastical juris¬ 
diction (can. 2334, 2336) ; 


304 


PENAL CODE 


d) On clerics who are guilty of verbal injuries or 
defamation inflicted on other clerics or on laymen, pro¬ 
vided a very serious scandal was given or great damage 
done (can. 2355) ; 

e) On clerics guilty of the crimes mentioned in can. 
23591 

f) On clerics forging or falsifying documents of the 
Apostolic See or using such forged or falsified docu¬ 
ments (can. 2360) ; 

g) On clerics who take illegal possession of an ec¬ 
clesiastical office, benefice, or dignity (can. 2394) ; 

h) On clerics who refuse to make the profession of 
faith, if such is, according to can. 1406, prescribed for 
them (can. 2403) ; 

i) On clerics who withdraw, destroy, conceal, or sub¬ 
stantially alter any document belonging to the episcopal 
court (can. 2405). 

These are the more important and grievous penalties 
mentioned in the Code. As to their application, it should 
be remembered that Ordinaries are not entirely free, but 
should act as explained above. 


APPENDIX I 


i. PROFESSION OF FAITH PRESCRIBED BY 

THE NEW CODE 

Ego N. firma fide credo et profiteor omnia et singula, 
quae continentur in symbolo Fidei, quo sancta Romana 
Ecclesia utitur, videlicet: Credo in unum Deum, Patrem 
omnipotentem, factorem caeli et terrae, visibilium omnium 
et invisibilium. Et in unum Dominum Iesum Christum, 
Filium Dei Unigenitum. Et ex Patre natum, ante omnia 
saecula. Deum de Deo, lumen de lumine, Deum verum 
de Deo vero. Genitum non factum, consubstantialem 
Patri: per quern omnia facta sunt. Qui propter nos 
homines, et propter nostram salutem descendit de caelis. 
Et incarnatus est de Spiritu Sancto ex Maria Virgine, 
et Homo factus est. Crucifixus etiam pro nobis, sub 
Pontio Pilato: passus, et sepultus est. Et resurrexit 
tertia die, secundum Scripturas. Et ascendit in caelum: 
sedet at dexteram Patris. Et iterum venturus est cum 
gloria iudicare vivos, et mortuos: cuius regni non erit 
finis. Et in Spiritum Sanctum, Dominum et vivifican- 
tem: qui ex Patre Filioque procedit. Qui cum Patre et 
Filio simul adoratur, et conglorificatur: qui locutus est 
per prophetas. Et Unam, Sanctam, Catholicam et Apo- 
stolicam Ecclesiam. Confiteor unum Baptisma in remis- 
sionem peccatorum. Et exspecto resurrectionem mor- 
tuorum. Et vitam venturi saeculi. Amen. 

Apostolicas et ecclesiasticas traditiones, reliquasque 
eiusdem Ecclesiae observationes et constitutiones firmis- 
sime admitto et amplector. Item sacram Scripturam iux- 
ta eum sensum, quern tenuit et tenet sancta Mater Ec- 

305 


3°6 


PROFESSION OF FAITH 


clcsia, cuius est iudicare de vero sensu et interpretatione 
sacrarum Scripturarum, admitto; nec earn unquam, nisi 
iuxta unanimem consensum Patrum, accipiam et inter- 
pretabor. 

Profiteor quoque septem esse vere et proprie Sacra- 
menta novae legis a Iesu Christo Domino nostro insti- 
tuta, atque ad salutem humani generis, licet non omnia 
singulis, necessaria, scilicet, Baptismum, Confirmationem, 
Eucharistiam, Poenitentiam, Extremam Unctionem, Or- 
dinem et Matrimonium; illaque gratiam conferre, et ex 
his Baptismum, Confirmationem et Ordinem sine sacri- 
legio reiterari non posse.—Receptos quoque et approbatos 
Ecclesiae Catholicae ritus in supradictorum omnium 
Sacramentorum sollemni administratione recipio et ad¬ 
mitto.—Omnia et singula quae de peccato originali et de 
iustificatione in sacrosancta Tridentina Synodo definita et 
declarata fuerunt, amplector et recipio.—Profiteor pariter 
in Missa ofiferri Deo verum, proprium et propitiatorium 
Sacrificium pro vivis et defunctis; atque in sanctissimo 
Eucharistiae Sacramento esse vere, realiter et substantia- 
liter Corpus et Sanguinem una cum anima et divinitate 
Domini nostri Iesu Christi, fierique conversionem totius 
substantiae panis in Corpus, et totius substantiae vini in 
Sanguinem, quam conversionem Catholica Ecclesia Trans- 
substantiationem appellat. Fateor etiam sub altera tan- 
tum specie totum atque integrum Christum, verumque 
Sacramentum sumi.—Constanter teneo Purgatorium 
esse, animasque ibi detentas fidelium suffrages iuvari. 
Similiter et Sanctos una cum Christo regnantes vene- 
randos atque invocandos esse, eosque orationes Deo pro 
nobis offerre, atque eorum Reliquias esse venerandas. 
Firmiter assero imagines Christi ac Deiparae semper Vir- 
ginis, necnon aliorum Sanctorum habendas et retinendas 
esse, atque eis debitum honorem ac venerationem imperti- 


APPENDICES 


307 


endam.—Indulgentiarum etiam potestatem a Christo in 
Ecclesia relictam fuisse, illarumque usum Christiano 
populo maxime salutarem esse afifirmo.—Sanctam, Ca- 
tholicam et Apostolicam Romanam Ecclesiam, omnium 
Ecclesiarum matrem et magistram agnosco, Romanoque 
Pontifici beati Petri Apostolorum Principis successori ac 
Iesu Christi Vicario veram obedientiam spondeo ac iuro. 

Cetera item omnia a sacris Canonibus et Oecumenicis 
Conciliis, ac praecipue a sacrosancta Tridentina Synodo 
et ab Oecumenico Concilio Vaticano tradita, definita ac 
declarata, praesertim de Romani Pontificis primatu et 
infallibili magisterio, indubitanter recipio atque profiteor, 
similque contraria omnia, atque haereses quascunque ab 
Ecclesia damnata et reiectas et anathematizatas, ego pa- 
riter damno, reiicio et anathematizo. Hanc veram Catho- 
licam Fidem, extra quam nemo salvus esse potest, quam 
in praesenti sponte profiteor et veraciter teneo, eandem 
integram et inviolatam usque ad extremum vitae spiritum, 
constantissime, Deo adiuvante, retinere et confiteri, atque 
a meis subditis seu illis, quorum cura ad me in munere 
meo spectabit, teneri et doceri et praedicari, quantum in 
me erit curaturum, ego idem N. spondeo, voveo ac iuro. 
Sic me Deus adiuvet, et haec sancta Dei Evangelia. 

APPENDIX II 

FORMULA OF THE ANTIMODERNIST OATH 

Ego . . . firmiter amplector ac recipio omnia et sin¬ 
gula, quae ab inerranti Ecclesiae magisterio definita, ad- 
serta ac declarata sunt, praesertim ea doctrinae capita, 
quae huius temporis erroribus directo adversantur. Ac 
primum quidem Deum, rerum omnium principium et 
finem, naturali rationis lumine per ea quae facta sunt, 


308 THE ANTIMODERNIST OATH 


hoc est per visibilia creationis opera, tamquam causam 
per effectus, certo cognosci, adeoque demonstrari etiam 
posse, profiteor. Secundo, externa revelationis argu- 
menta, hoc est facta divina, in primisque miracula et pro- 
phetias admitto et agnosco tamquam signa certissima di- 
vinitus ortae christianae Religionis, eademque teneo aeta- 
tum omnium atque hominum etiam huius temporis, in- 
telligentiae esse, maxime accommodata. Tertio: Firma 
pariter fide credo, Ecclesiam, verbi revelati custodem et 
magistram, per ipsum verum atque historicum Christum, 
cum apud nos degeret, proxime ac directo institutam, ean- 
dem super Petrum, apostolicae hierarchiae principem eius- 
que in aevum successores aedificatam. Quarto: Fidei 
doctrinam ab Apostolis per orthodoxos Patres eodem 
scnsu eademque semper sententia ad nos usque trans- 
missam, sincere recipio ideoque prorsus reicio haereticum 
commentum evolutionis dogmatum, ab uno in alium sen- 
sum transeuntium, diversum ab eo, quern prius habuit Ec- 
clcsia; pariterque damno errorem omnem, quo, divino de- 
posito, Christi Sponsae tradito ab Eaque fideliter custo- 
diendo, sufficitur philosophicum inventum, vel creatio hu- 
manae conscientiae, hominum conatu sensim efformatae 
et in posterum indefinito progressu perficiendae. Quinto : 
certissime teneo ac sincere profiteor, Fidem non esse 
coecum sensum religionis e latebris subconscientiae erum- 
pentem, sub pressione cordis et inflexionis voluntatis 
moraliter informatae, sed verum assensum intellectus veri- 
tati extrinsecus acceptae ex auditu, quo nempe, quae a Deo 
personali, creatore ac domino nostro dicta, testata et re- 
velata sunt, vera esse credimus, propter Dei auctoritatem 
summe veracis. 

Me etiam, qua par est reverentia, subiicio totoque 
animo adhaereo damnationibus, declarationibus, prae- 
scriptis omnibus, quae in Encyclicis literis Pascendi et in 


APPENDICES 


309 


Decreto Lamentabili continentur, praesertim circa earn 
quam historiam dogmatum vocant.—Idem reprobo er- 
rorem affirmantium, propositam ab Ecclesia fidem posse 
historiae repugnare, et catholica dogmata, quo sensu nunc 
intelliguntur, cum verioribus christianae religionis origi- 
nibus componi non posse.—Damno quoque ac reiicio 
eorum sententiam, qui dicunt, christianum hominem eru- 
ditiorem induere personam duplicem, aliam credentis, 
aliam historici, quasi liceret historico ea retinere quae 
credentis fidei contradicunt, aut praemissas adstruere, ex 
quibus consequatur dogmata esse aut falsa aut dubia, 
modo haec directo non denegentur.—Reprobo pariter earn 
Scripturae Sanctae diiudicandae atque interpretandae ra- 
tionem, quae, Ecclesiae traditione, analogia Fidei, et 
Apostolicae Sedis normis posthabitis, rationalistarum 
commentis inhaeret, et criticen textus velut unicam sup- 
remamque regulam, haud minus licenter quam temere am- 
plectitur.—Sententiam praeterea illorum reiicio qui tenent, 
doctori disciplinae historicae theologicae tradendae, aut iis 
de rebus scribenti seponendam prius esse opinionem ante 
conceptam sive de supernaturali origine catholicae tradi- 
tionis, sive de promissa divinitus ope ad perennem con- 
servationem uniuscuiusque revelati veri; deinde scripta 
Patrum singulorum interpretanda solis scientiae princi- 
piis, sacra qualibet auctoritate seclusa, eaque iudicii liber- 
tate, qua profana quaevis monumenta solent investigari. 
—In universum denique me alienissimum ab errore pro¬ 
fiteer, quo modernistae tenent in sacra traditione nihil 
inesse divini; aut quod longe deterius, pantheistico sensu 
illud admittunt; ita ut nihil iam restet nisi nudum factum 
et simplex, communibus historiae factis aequandum; 
hominum nempe sua industria, solertia, ingenio scholam 
a Christo eiusque apostolis inchoatam per subsequentes 
aetates continuantium. Proinde fidem Patrum firmissime 


3 io 


APPENDICES 


retineo et extremum vitae spiritum retinebo, de charismate 
veritatis certo, quod est, fuit eritque semper in piscopatus 
ab Apostolis successione; non ut id teneatur quod melius 
et aptius videri possit secundum suam cuiusque aetatis 
culturam, sed ut nunquam aliter credatur, nunquam aliter 
intelligatur absoluta et immutabilis veritas ab initia per 
Apostolos praedicata.—Haec omnia spondeo me fideliter, 
integre sincereque servaturum et inviolabiliter custodi- 
turum, nusquam ab iis sive in docendo sive quomodolibet 
verbis scriptisque deflectendo. Sic spondeo, sic iuro, sic 
me Deus adiuvet etc. 


APPENDIX III 


FORMULA FOR RECONSECRATING ALTARS 

A 

Instaurato Altari immobili et mensci, integrum Reliqui- 
arum sepulcrum habentc, cum stipite coniuncta, Consecra- 
tor sancto chrismate inungat, ad modum crucis, coniunc- 
tiones mensae cum stipite in quatuor angulis, quasi illas 
coniungens, ad singulas cruces dicens : In NOMINE 
PA Hh TRIS ET FI ^ LII ET SPIRITUS ^ 
SANCTI, recitatis dein orationibus MAIESTATEM 
TUAM, et SUPPLICES TE DEPRECAMUR iuxta 
Pontificate Romanum; ac subinde scripto declaret ac tes- 
tetur praefatum Altar e a se, ordinaria vel dele gat a auc- 
toritate, rite consecratum, uti tale habendum esse et sub 
eodem titulo quo ipsum ante execrationem gaudebat. 

B 

Pontifex, indutus rochetto et stola alba, vel Presbyter, 
indutus superpelliceo et stola alba, accedit versus altare 
et, loco congruenti stans, benedicit aquam cum sale, cin- 
ere et vino, incipiens absolute exorcismum salis. 

Exorcizo te, creatura salis, in nomine Domini nostri 
Iesu Christi, qui Apostolis suis ait: Vos estis sal terrae, 
et per Apostolum dicit: Sermo vester semper in gratia 
sale sit conditus; ut sancti ►{< ficeris ad consecrationem 
huius altaris, ad expellendas omnes daemonum tenta- 
tiones; et omnibus, qui ex te sumpserint, sis animae et 
corporis tutamentum, sanitas, protectio et confirmatio sa- 
lutis. Per eumdem Dominum nostrum Iesum Christum 

3ii 


312FORMULA FOR RECONSECRATING ALTARS 


Filium tuum, qui venturus est iudicare vivos et mortuos, 
et saeculum per ignem. 

R. Amen. 

Deinde dicit: 

V. Dominus vobiscum. 

R. Et cum spiritu tuo. 

Oremus. 

Domine Deus, Pater omnipotens, qui hanc gratiam 
caelitus sali tribuere dignatus es, ut ex illo possint uni- 
versa condiri, quae hominibus ad escam procreasti, bene- 
die hanc creaturam salis, ad effugandum inimicum; et 
ei salubrem medicinam immitte, ut proficiat sumentibus 
ad animae et corporis sanitatem. Per Christum Do- 
minum nostrum. 

R. Amen. 

Turn procedit absolute ad exorcismum aquae : 

Exorcizo te, creatura aquae, in nomine Dei Pa ►£< tris, 
et Fi >%* lii, et Spiritus ►F Sancti, ut repellas diabolum a 
termino iustorum, ne sit in umbraculis huius Ecclesiae et 
altaris. Et tu, Domine Iesu Christe, inf unde Spiritum 
sanctum in hanc Ecclesiam tuam et altare; ut proficiat ad 
sanitatem corporum animarumque adorantium te, et mag- 
nificetur nomen tuum in gentibus: et increduli corde con- 
vertantur ad te, et non habeant alium Deum, praeter te, 
Dominum solum, qui venturus es iudicare vivos et mor¬ 
tuos, et saeculum per ignem. 

R. Amen. 

Deinde dicit : 

V. Domine, exaudi orationem meam. 

R. Et clamor meus ad te veniat. 

V. Dominus vobiscum. 

R. Et cum spiritu tuo. 


APPENDICES 


313 


Oremus. 

Domine Deus, Pater omnipotens, statutor omnium ele- 
mentorum, qui per Iesum Christum Filium tuum Do 
minum nostrum elementum hoc aquae in salutem humani 
generis esse voluisti, te supplices deprecamur, ut, exau- 
ditis orationibus nostris, earn tuae pietatis aspectu sancti- 
Hh flees; atque ita omnium spirituum immundorum ab 
ea recedat incursio, ut ubicumque fuerit in nomine tuo 
aspersa, gratia tuae benedictionis adveniat, et mala omnia, 
te propitiante, procul recedant. Per eumdem Dominum 
nostrum Iesum Christum Filium tuum: Qui tecum vivit 
et regnat Deus, per omnia saecula saeculorum. 

R. Amen. 

Turn die it super cineres : 


Benedictio cinerum. 

V. Domine, exaudi orationem meam. 
R. Et clamor meus ad te veniat. 

V. Dominus vobiscum. 

R. Et cum spiritu tuo. 


Oremus. 

Omnipotens sempiterne Deus, parce poenitentibus, pro- 
pitiare supplicantibus, et mittere digneris sanctum An- 
gelum tuum de caelis, qui bene ^ dicat et sancti >%* fleet 
hos cineres, ut sint remedium salubre omnibus, nomen 
sanctum tuum humiliter implorantibus, ac semetipsos pro 
conscientia delictorum suorum accusantibus, ante con- 
spectum divinae clementiae tuae facinora sua deploran- 
tibus, vel serenissimam pietatem tuam suppliciter obnixe- 


314 FORMULA FOR RECONSECRATING ALTARS 


que flagitantibus; et praesta, per invocationem sanctis- 
simi nominis tui, ut quicumque eos super se asperserint, 
pro redemptione peccatorum suorum, corporis sanitatem 
et animae tutelam percipiant. Per Christum Dominum 
nostrum. 

R. Amen. 

Turn accipit sal, et miscet cineri in modum crucis, 
dicens : 

Commixtio salis et cineris pariter fiat. In nomine Pa- 

tris, et Fi lii, et Spiritus Sancti. 

R. Amen. 

Deinde, accipiens pugillum de mixtura salis et cinerum, 
mittit in aquam in modum crucis, dicens : 

Commixtio salis, cineris et aquae pariter fiat. In no¬ 
mine Pa tris, et Fi lii, et Spiritus ^ Sancti. 

R. Amen. 

Deinde dicit super vinum : 

Bene die tio vini. 

V. Domine, exaudi orationem meam. 

R. Et clamor meus ad te veniat. 

V. Dominus vobiscum. 

R. Et cum spiritu tuo. 

Oremus. 

Domine Iesu Christe, qui in Cana Galilaeae ex aqua 
vinum fecisti, quique es vitis vera, multiplica super nos 
misericordiam tuam; et bene ►{« dicere et sancti ficare 
digneris hanc creaturam vini, ut ubicumque fusum fuerit, 
vel aspersum, divinae id benedictionis tuae opulentia re- 
pleatur, et sanctificetur: Qui cum Patre, et Spiritu 
Sancto, vivis et regnas Deus, per omnia saecula saecu- 
lorum. 

R. Amen. 


APPENDICES 


315 

Deinde mittit in modum crucis vinum in aquam ipsam, 
dicens : 

Commixtio vini, salis, cineris et aquae pariter fiat. In 
nomine Pa tris, et Fi ^ lii, et Spiritus ►J* Sancti. 

R. Amen. 

V. Domine, exaudi orationem meam. 

R. Et clamor meus ad te veniat. 

V. Dominus vobiscum. 

R. Et cum spiritu tuo. 

Oremus. 

Omnipotens sempiterne Deus, creator et conservator 
humani generis, et dator gratiae spiritualis, ac largitor 
aeternae salutis, emitte Spiritum Sanctum tuum super hoc 
vinum cum aqua, sale et cinere mixtum; ut armatum 
caelestis defensione virtutis, ad consecrationem huius al- 
taris tui proficiat. Per Dominum nostrum Iesum 
Christum Filium tuum: Qui tecum vivit et regnat in 
unitate eiusdem Spiritus Sancti Deus, per omnia saecula 
saeculorum. 

R. Amen. 

Postea cum praemissa aqua benedicta facit maltam, seu 
coementum, quod benedicit, dicens: 

V. Dominus vobiscum. 

R. Et cum spiritu tuo. 

Oremus. 

Summe Deus, qui summa et media imaque custodis, 
qui omnem creaturam intrinsecus ambiendo concludis, 
sancti ►{« fica et bene ^ die has creaturas calcis et sabuli. 
Per Christum Dominum nostrum. 

R. Amen. 


316 FORMULA FOR RECONSECRATING ALTARS 


Coementum benedictum reservatur et residuum aquae 
benedictae funditur in sacrarium. 

Deinde consecrator, accedens ad altare, signal cum 
pollice dexterae manus de Chrismate confessionem, id est 
sepulchrum altaris, a quo ablatae sunt Reliquiae, in 
quatuor angulis signum crucis, et dicens, dum unamquam - 
que crucem facit : 

Conse ►£< cretur, et sancti ►{« ficetur hoc sepulchrum. 
In nomine Pa ►£< tris et Fi ^ Hi, et Spiritus ►£< Sancti. 
Pax huic domui. 

Deinde recondit ibi vasculum cum Reliquiis et aliis in 
eo inclusis veneranter, atque accipiens lapidem, seu 
tabulam, qua debet claudi sepulchrum, facit cum 
pollice crucem de Chrismate subtus in medio eius, 
dicens: 

Conse ►J* cretur et sancti ficetur haec tabula (vel hie 
lapis), per istam unctionem et Dei benedictionem. In 
nomine Pa ►{« tris, et Fi ►J* lii, et Spiritus ^ Sancti. Pax 
tibi. 

Et mox, coemento bene diet o adhibit o, adiuvante, si 
opus fuerit, coementario, ponit et coaptat tabulam, seu 
lapidem, super sepulchrum, elandens illud, et dicit : 

Oremus. 

Deus, qui ex omnium cohabitatione Sanctorum, aeter- 
num maiestati tuae condis habitaculum, da aedificationi 
tuae incrementa caelestia: et praesta; ut quorum hie Re- 
liquias pio amore complectimur, eorum semper meritis 
adiuvemur. Per Christum Dominum nostrum. 

R. Amen. 

Tunc, coementario adiuikinte, cum eodem coemento 
firmat ipsam tabulam, seu lapidem, super sepulchrum : 
deinde ipse facit crucem desuper ex Chrismate cum pol¬ 
lice dexterae manus, dicens: 


APPENDICES 


3i7 


Signe ►{« tur et sancti ficetur hoc altare. In nomine 
Pa ►{« tris, et Fi ►{< lii, et Spiritus Sancti. Pax tibi. 


Ex Secretaria S. Rituum Congregation^, die 9 septem- 
bris 1920. 





ALPHABETICAL INDEX 


Abbots nullius 30 f.; 105 

Abduction 144 

Absent pardoned 273 

Abstinence 184 

Acta Ap. Sedis 2 

Action, at trials 232 

Acts judicial 13; legal 281 f. 

Ad beneplacitum nostrum 24 
Adiri Ordinarius 132 
Administration, of property 
219 ff. 

Administrator, as to appoint¬ 
ments 37; of church property 
173 

Administrator Apostolic 30 
Admonitions 254 ff.; 257; 269 
Adoption, legal 130; 146 
Adults, baptism of 59 f. 

Aeque principaliter 38 
Affinity 145 f. 

Age, for marriage 140; as to 
crime 264 

Alienation of property 221; of 
relics 189 

Altar for Mass 79; kinds of 
176 f.; privileged 87; 105 
Analogy in law 269 
Apostates, absolution of 52; 

from faith 196; reserved 292 
Apostolic Blessing 43 
Appeals 241 f.; 250; 287 
Application of Mass 75; of 
penalties 268 f. 

Archbishops, indulgences 104; 

precedence 13 
Assessors 229 

Assistance, at marriage valid 
151 ff.; delegated 154; licit 

319 


154 f-1 at liturgical service 
283 

Assistants (curates) 43 ff.; 
rights and duties 46 f.; pre¬ 
cedence 14; as to marriage 
152 

Attempt, of crime 266 
Auditor 229 

Banns 125 f. 

Baptism, administration of 
55 ffi; right to 49; rites and 
ceremonies 62 ff.; sponsors 
of 65 ff.; subject of 58 ff.; as 
to marriage 120 
Beatification 252 f. 

Bells 172 

Benefice, ecclesiastical 21 f.; 
206 ff.; beneficium competen¬ 
ce 19 

Betrothal 121 f. 

Bill of plea 233 
Bination 74 

Bishops, their powers 31 
Blessings of bells 172; of 
churches 172; of marriages 
157 f.; papal 105; reserved 
169 ff.; of s. vessels or uten¬ 
sils 191 f. 

Books, censorship of 201 ff.; 
forbidden 202 f.; parish 43; 
of stipends 91 
Bread, species of 76; 93 
Breviary 20 
Bride’s pastor 155 
Burial service 178 ff.; privation 
of ecclesiastical 182 
Business forbidden 21 


320 


INDEX 


Caeremoniale Episcoporum i 
Canonization 252 f. 

Cardinals, right of hearing 
confessions 97; as to indul¬ 
gences 104; the Pope’s sen¬ 
ate 13; as to precedence 13 
Carelessness (inadvertence) 
264*; 271 

Casus necessitatis 155 f.; per- 
plexus 132 

Cathedraticum 211 f. 

Cause (reason) canonical 134 
ff.; for dispensation 10; for 
removal 254 ff. 

Celebret 74 
Celibacy 20 

Cemetery, chapels 176; dese¬ 
cration of 172; as to inter¬ 
dict 285; parish 178 f. 
Censorship of books 201 ff. 
Censures, in general 274 ff.; in 
particular 281 ff. 

Ceremonies, see Rites 
Chalices 192 
Chancellor 33 

Children, as to baptism 61; for 
communion 93; legitimate 
i6i*f. 

Christmas bright ”Mass 78 
Church building, blessing 171 

ff. 

Circumstances, as to crime 265 
Clergy, obligations of 19; 
rights 18 f. 

Coadjutor of bishops 31; of 
pastors 45 

Collection of indulgences 106 
Collegialiter 33; 229 
Communication in sacris 153; 
186 

Communication of privileges 9 
Communion, Holy 91 ff.; fre- 
Quent 95 

Commutation, of good works 
in; of vows 193 


Competency of court 236 f. 
Conatus delicti 365 
Concordats 1 
Concubinage 146 
Concubinarians, procedure 
against 258 f. 

Concursus for parishes 37 f. 
Conditional baptism 63 ff.; 
marriage 148 f. 

Confessions, hearing of 25; 
jurisdiction 97 ff.; judicial 
233; 245 

Confessors, as to dispensation* 
11; how to act 101 f.; as to 
marriage impediments 132; 
as to vows 193 
Confirmation 72 f. 
Confraternities 52 f.; a* to 
precedence 14 
Consanguinity 145 
Consecration 171 ff.; loss of 
172; 177 

Consent, as to alienation of 
church property 221; matri¬ 
monial 146 ff. ’ 

Conspiracy to crime 272 
Contracts in general 221; mat¬ 
rimonial 118; as to stipend* 
81 

Contumacy, as to censure* 274; 
at trials 238 

Councils, general and other* 
29 f. 

Court, competent 226 f.; dio¬ 
cesan 32 ff.; Roman 29; priv¬ 
ileged 19 

Crime, for inflicting suspension 
ex informata conscientia 260; 
as matrimonial impediment 
144; nature etc. of, 262 ff. 
Criminal procedure 225; 228; 

trials 244 ff. 

Cubiculum 79 
Cultus via 253 
Curates, see Assistants 


INDEX 


3 21 


Customs, as related to the 
Code i; 3 ff.; reprobated 69; 
118; 129; 228 

Danger of death, as to baptism 
58; 61; 63 ; 69; communion 
of children 93; for confes¬ 
sion and absolution 99; 
278 f.; marriage impediments 
and assistance 131 f.; 155 f. 
Date, for rescripts 7 
Day 4; beginning of 5 f. 
Deacon as to baptism 58; as 
to communion 91 f. 

Deans, appointment of 34; as 
to lawsuits 220; precedence 
13; as to reserved cases 100 
Debts 222 

Dedication of churches 172 
Defence, pleading 238 f. 
Defendant 230 

Defensor ordinationis 252; vin- 
culi 230; 247 ff. 

Degradation 290; 300 
Delegates Apostolic, as to in¬ 
dulgences 105 

Delegation, of jurisdiction 24; 

for marriage 154 
Deposition 289; 301 
Desecration 172 f. 

Devotional articles 9; 169 
Diocesan Court 32 ff. 
Dismembration of parishes 28 
Disparity of worship 142 
Dispensations, in general 10; 
canonical reasons for 134 f.; 
from impediments 129 ff.; 
from penalties 287; rules for 
133 f- 

Dissolution of marriage 162 f. 
Division of benefices 207; of 
parishes 27; 206; of property 
210 

Divorce 251 
Documents 236 f.; 249 


Domicile, Quasi-domicile 12; 
as to publication of banns 

125 

Donations 218; 222 
Dummodo, in rescripts 7 
Duties of pastors 41 ff.; par¬ 
ents 161; 197; 200; of spon¬ 
sors 68 

Easter duty or tide 95; 99; 103 
Emblems, at funerals 181 
Endowment (dos) for bene¬ 
fices 21 f.; 206 
Engagement 121 
Episcopus propri'us 16; 114 
Error, as to crime 264; as to 
marriage 148; in rescripts 7 
Eucharist, Holy 49; reservation 
and worship 187 ff.; as Sac¬ 
rament 91 ff.; as Sacrifice 
77 ff. 

Examination, bridal 123; for 
pastors 37 

Examiners 33; 254 ff. 
Excardination 15 ff. 

Exception, at trials 232 
Exchange of benefices 208; of 
property 222 

Excommunication, as censure 
281 ff.; modo specialissimo 
reserved 291; modo speciali 
292 f.; simpliciter 294 f.; to 
the Ordinary 296 f.; Nemini 
297 f. 

Excommunicatus, as to Mass 
75; as to marriage 140; at 
trials 231; toleratus or vi- 
tandus 283 f. 

Execution of rescripts 7; of 
sentence 243 

Executor of rescripts 7; of 
marriage 136 

Exemption of religious or pi¬ 
ous houses 49; of seminaries 
199 


322 


INDEX 


Exorcism 170 
Expositi (children) 62 
Exposition of Bl. Sacrament 

188 

Extreme Unction in ff. 
Faculties 10 

Faith Catholic 163 f.; profes¬ 
sion of faith 205; formula, 
see Appendix 
Fast 94; 184 
Fatalia 242 
Fear 149; 152 

Feast, of dedication 171 f.; of 
obligation 183 
Fees for dispensation 136 
Fetus, as to baptism 59 
Font* baptismal 69 f. 

Form, of baptism 63 f.; of con¬ 
firmation 72; of marriage 

150 ff. 

Formula of absolution 276 
Forty Hours’ Devotion 105; 
188 

Forum internum and externum 
276 f.; 279 

Foundation-Masses 80; pious 
224 

Fracture of altar 178 
Free status, as to marriage 
126; how proved 141 
Funerals 179 f. 

Gregorian Masses 88 f. 

Heretics, as to Sacraments 54; 
as sponsors 66; temples of 
80; who 196 

Hierarchy, in general 15; local 
26 f. 

Holydays 183 f. 

Holy Oils 55; 64; 112 f. 
Hospitals 209 


Ignorance, as to crime 263; ir¬ 
regularities 116; laws 3; 
marriage 147; penalties 271 
Illegitimate, as to domicile 12; 

legitimation of 162 
Images 189 
Impedita sedes 37 
Impediments, in general 126; 
diriment 140 ff.; nature, num¬ 
ber, list of 127 ff.; prohibi¬ 
tive 137 ff. 

Impotency 140 f.; 247 
Imprimatur 201 f. 

Imputability of crime 263 f. 
Incardination 15 ff. 

Income 40 

Incompatible offices 22 
Indigni publice 94 
Indulgences 103 ff. 

In devolutivo 274 
Indults 1 

Infamy 66 f.; 288 f.; 301 f. 
Infants, who 12; as to baptism 
59 f. 

Infidels, children of 61 
Informata conscientia 259 f. 

In fraudem legis 101; 275 
Initium diei 5 f. 

Inquest 245 

Inquisition 245; inquisitor ib. 

Insanity 60 

Insolvency 19 

Instance second 242 

In suspensivo 27 

Intention, for baptism 60 f.; 

for Mass 82 f. 

Intercourse, social 284 
Interdicts 284 f.; reserved 298 
Interest 223 
Interpellation 164 f. 
Interpretation, of dispensations 
11; of laws 3; of penalties 
269; of privileges 10; of re¬ 
scripts 10 


INDEX 


323 


Irregularities 114 ft. 

Jubilee 104 
Judge 227 ff.; 270 
Jurisdiction, in general, kinds 
of, 24 ff.; for hearing con¬ 
fessions 97 ff. 

Jus ad rem, in re 23 

Laity 52 

Language, liturgical 77 
Law, ecclesiastical 2 f.; litur¬ 
gical 1; natural as to mar¬ 
riage impediments 129; new 
and old 2; penal 2; 266; 
-suits 220 

Lay state, reduction to 25; lay 
administration 220 
Lease of property 222 f. 

Leave of absence 16 f. 

Legacies 218 
Legates 29 f. 

Legitimation 162 
Libellus 233 f. 

Ligamen 141 
Litis contestatio 233 
Loss of blessing 191; of con¬ 
secration 172; 177; of juris¬ 
diction 98; of office 23 

Mandate, for jurisdiction 25; 
-rescripts 8 

Marriage, assistance at 146 f.; 
bond 141; celebration 50; 
160; of conscience 159 f.; 
dissolution 162; effects 161 
f.; impediments 2; 126 ff.; as 
to irregularity 115; as Sac¬ 
rament H9ff.; trials 246 ff. 
Mass, Sacrifice of 73 ff.; inten¬ 
tion-application 83 f.; sti¬ 
pends 80 ff.; sent away 89; 
for people 42; private 92 


Matrimony 118 ff.; nature and 
kinds 120; matrimonium 
ratum 120; 162; 247 
Matter of baptism 63 f.; of 
confirmation 72; of Mass 
76 f. 

Mendicants, precedence 14 
Mensa altaris 177 
Metropolitans 30; 228 
Military service 19 
Minister of baptism 56; of 
confirmation 72; of Holy Eu¬ 
charist 91 ff.; of Penance 
97 ff.; Extreme Unction 111; 
Holy Orders 113 f.; of Sac- 
ramentals 169 

Minors, as to domicile 12; at 
to marriage 127; at trials 230 
Missale Romanum 1 
Missions, missionaries 100; 198 
Mixed marriages 137 f.; cele¬ 
bration of 158 f. 

Monks, precedence 14 
Monsters, as to baptism 59 
Month 4 

Mutes, as to Indulgences in 

Names, Christian 65 
Neglectful pastors, procedure 
against 259 
“Ne temere” 151; 251 
Non-Catholics, children of 62; 
conversion 198; lawyers 231; 
Mass for 75 
Notary 33; 229 
Notorious crime 262 

Oath, religious act 194 f.; for 
incardination 16 f.; at trials 
234; 238 

Occult crime 263; absolution 
from 273 
Oeconomus 45 


324 


INDEX 


Offerings 174 

Office, divine 281; 285; eccle¬ 
siastical 21 ff. ■ 

Offfcialis 33; 227 f. 

Orally granted privileges 10 
Oratories 175 f. 

Orders; ordination 113 ff.; im¬ 
pediment 144; trials 251 
Ordinary, assistance at mar¬ 
riages 152 ff.; canonization 
253; confessions 98; dispen¬ 
sations 129 ff.; Masses 89 ff.; 
matrimonial trials 247 ff.; 
Pauline Privilege 165; penal¬ 
ties 269; 273; reservation of 
sins and censures 99 f.; 296 
f.; trials 227 ff. 

Oriental Church 1; priests 74; 
marriage 156 

Papal Blessing 105 
Parents’ obligation 161; 197; 
200 

Parishes, definition 26; divi¬ 
sion 27; incapable of customs 
4; incorporation of 36 
Parochial rights 39 f. 

Parochus proprius 12; as to 
banns 125 

Participation in sacris 153; 186 
Passions, 265 

Pastors, appointment 37; defi¬ 
nition 35; not of divine right 
15; 34; precedence 14; qual¬ 
ifications 36; rights 39 f. (see 
the several Sacraments) 
Pastors consultors 33; 254 ff. 
Patrini, see sponsors, 65 ff. 
Pauline Privilege 163 ff.; 247 
Penal remedies 290 
Penalties 266 ff.; a iure—ab 
homine 268; for individual 
crimes 291 ff.; vindictive 287 
ff. 

Penance, as Sacrament 97 ff.; 


to be imposed 278 ff.; admin¬ 
istered to religious 50; penal 
remedies 291 

Peregrini 3; 12; as to absolu¬ 
tion 277; confession 98; bap¬ 
tism 56; indulgences 107 
Per modum actus 71; potus 94 
Persons, ecclesiastical 12 ff. 
Place, for baptism 69; Holy 
Communion 96; Mass 79; 
marriages 160; sacred 171 ff. 
Plaintiff 230 
Ponens 241 

Pontificale Romanum 1; 105 
Poor, to be served 40; as to 
burial 178 

Possession, taking of, offices 
23; of parishes 39; for as¬ 
sistance at marriage 152 
Praesumptio (circumstantial 
evidence) 237 f. 

Preaching, called to 51; obliged 
to 196 

Precedence 13 f. 

Precepts 3; 290 
Prefects Apostolic 30 
Prelates, precedence 13; nul- 
lius 30 f. 

Prescription, for acquiring 
church property 217 f.; for 
privileges 9 
Priests’ funds 217 
Primacy 29 
Private Mass 92 
Privation, of ecclesiastical bur¬ 
ial 182; of offices 23; 302 f. 
Privileges 1; 8 ff. 

Privilegium, canonis 19; fori 
ib.; Paulinum 163 ff. 
Procedure, civil 225 ff.; 232; 
criminal 225; 228; 244 ff.; 
matrimonial 249 f.; for re¬ 
moving pastors 254 ff. 
Processions 190; at funerals 
179 


INDEX 


325 


Profession, of faith 39; 205; 
Appendix; religious solemn 
144; 162 

Promotor iustitiae 230; 244. f.; 
249 

Proof, of baptism 71 f.; of con¬ 
firmation 73; for trials 235 f. 
Property, ecclesiastical acquired 
209 ff.; administered 219 
Proxy, at marriage 147 f.; at 
trials 230 

Puberty 12; as to H. Commun¬ 
ion 95; marriage 125; penal¬ 
ties 272 

Public, crime 263; propriety 
(impediment) 146; sinners 

138 

Publication, of banns 125; of 
ordinations 117; of the proc¬ 
ess 239 

Qualifications, for offices 22 f.; 

for ordination 114 
Quamprimum 69 
Quarta funeris 182 
Questioning of parties 234 
Quieting of conscience 50 

Rebuke 245; 290 
Recall, of rescripts 8 
Reconciliation, of churches 172 
f. 

Recording, of baptism 71; of 
confirmation 73; of mar¬ 
riages 159; of ordination 
118; of pious foundations 
224 

Rectors 48 

Recourse, from censures 274; 
from penalties 287; required 
278; 280; from suspension 261 
Reduction, of bequests 219; of 
pious foundations 224 
Regulars (religious) 48 
Reincidence 280 


Relationship, spiritual; from 
baptism 68; from confirma¬ 
tion 73; impediment 146 

Relics 189 

Religious, apostates 297; 299; 
benefices 208; burial 50; 
community and parish 43 f.; 
as to hearing confessions 97; 
as to thei’r demands 51 f.; as 
to examination 20; incardi- 
nation 18; indulgences 108; 
as to Masses 78 f.; 81; 88; 
ordination 50; 114; pastor’s 
rights with regard to 49 ff.; 
preaching 51; precedence 14; 
profession as impediment 
144; sponsors 66; 67 f.; state 
48 ff.; as to trials 228 

Remission (pardon) of penal¬ 
ties 272 f. 

Removal, of irremovable pas¬ 
tors 254 f.; of removable 
pastors 256 

Rent 222 f. 

Renunciation of privileges 10 

Repair of churches 174 f. 

Rescripts 6 ff. 

Reservation, of censures 274 
ff.; of sins 99 f. 

Residence of pastors 41 f.; of 
assistants 46; as to procedure 
257 

Resignation, of benefices 208; 
of offices 23; invitation to 
255 f- 

Res iudicata 243; 250 

Retroactive law 2 

Revalidation of marriage 166 

ff. 

Rites (ceremonies), of bap¬ 
tism 62 ff.; 65 ; for blessings 
170; for Holy Communion 
and Mass 93 ; 96; 76 f.; as to 
domicile 13; Extreme Unc¬ 
tion 112 f.; marriage 156 f. 


326 


INDEX 


Roman Court 29 
Roman Pontiff 28 f. 

Rubrics of Mass 77 

Sacramentals 169 ff. 

Sacraments 54 ff.; by excom¬ 
municated ministers 283 f.; 
suspended 286 f. 

Sacrilegious Communion or 
Confession 95; 103 
Saints, worship of 188 f. 

Sale of church property 222 
Sanatio in radice 167 f. 
Scandal, as to ecclesiastical 
burial 182; as to impediments 
131; 137 
Schools 199 ff. 

Sea, confession at 99 
Seal, of confession 101 f.; 291; 
parish 43 

Seats in church 186 
Self-defence 264 
Seminaries, tax (seminaris- 
ticum) 198 f. 

Sending away Mass-stipends 
89 f. 

Sentence, defects of 2431 exe " 
cution of 243 f.; nullity 242 ; 
at trials how to be given 
240 f. 

Sententi'a ferenda, lata 268; 
286; 290; 294 

Separation of parties 165 f. 
Sick, Holy Communion to 92 

f-; 94 

Slavery, as to marriage 148 
Son, as to domicile 12 
Spectacles, forbidden 20 
Sponsors (Godparents) in bap¬ 
tism 65; confirmation 73 
State, civil, as to marriage im¬ 
pediments 119 f. 

Stipends of Masses 80 ff. 
Stole fees 40; 46; 551 1551 
181 f. 


Straightening of marriages 
138 f. 

Subsidy, charitable 213 
Substitutes, as to assistance at 
marriage 47 f. 

Summons 233 
Supellex sacra 191 f. 

“Supplet Ecclesia” 25 
Suspension, as censure 285 f.; 
ex informata conscientia 259 
f.; reserved 298 f. 

Synods, diocesan 31 f. 

Tabernacle, lamp etc. 187 
“Tametsi” 150 f.; 251 
Taxes 198; 211; 213 
Teaching Office of the Church 
195 ff. 

Telephone 132 

Tempus continuum, utile 6; for 
Mass-stipends 84 
Tertiaries 14; 53 
Time, for appointment to of¬ 
fices 22; for baptism 68 f.; 
Holy Communion 96; 99; 
for confession 103; for con¬ 
firmation 72 f.; lapse of 24; 
for marriage 160; for Mass 
and stipends 77 f.; 84 f.; for 
ordination 117 f.; reckoning 
of 4 ff.; sacred seasons 171 
ff.; useful and continuous 6 
Title, of church 172; of or¬ 
dination 114 
| Titulum, in 36; 39 
Titulus iustitiae 83 
Tonsure 15; 16 

Trading forbidden to clerics 
21; in Mass-stipends 83 
Transfer of benefices 208; of 
pastors 257 

Trials ecclesiastical 225 ff. 
Trustees of churches 173 f. 
Tutors (guardians) 197; 200; 
296 


INDEX 


327 


Urgent cases 279; 287 f. 
Useful time 6 

Vacancy, of episcopal see 34; 
of offices 34 

Vagus, definition 12; as to con¬ 
fession 98; indulgences 107; 
marriage 155 
Vestments, liturgical 76 
Viaticum 93; 95; 96 
Vicars Apostolic 30 
Vicar-General 22; as to ap¬ 
pointments 32; exemption 
49; incardination 18; penal- 
ti’es 269; rescripts 8; reser¬ 
vation of sins 99 
Vindictive penalties 287 ff. 
Violence 149; 152; 264 
Voluntariness, see imputability 
Vows, 192 f. 


Wages 220 

Water, baptismal 64; for rec¬ 
onciling churches 172 

Wife, as to domicile 12; at 
separation 165 f. 

Wine, for Mass 76 f. 

Witnesses, at marriages 152 f.; 
at trials 235 f. 

Works for gaining indulgences 
108 f. 

Worship, divine 185; of Saints 
188 f. 

Writing, required for canon¬ 
ical warnings 257; for con¬ 
ferring benefices 207; for de¬ 
nouncing clerics 244; for ex¬ 
ecuting rescripts 8; for sus¬ 
pension ex informata con- 
scientia 260 


Year, how reckoned 4 








































































































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